Exhibit 99.1

EXECUTION VERSION

BELL CANADA

US$1,000,000,000 6.875% FIXED-TO-FIXED RATE JUNIOR SUBORDINATED NOTES,

SERIES A DUE 2055

US$1,250,000,000 7.000% FIXED-TO-FIXED RATE JUNIOR SUBORDINATED NOTES,

SERIES B DUE 2055

UNDERWRITING AGREEMENT

February 12, 2025

BOFA SECURITIES, INC.

BMO CAPITAL MARKETS CORP.

CITIGROUP GLOBAL MARKETS INC.

RBC CAPITAL MARKETS, LLC

As Representatives of the several Underwriters

c/o BofA Securities, Inc.

One Bryant Park

New York, New York 10036

c/o BMO Capital Markets Corp.

151 West 42nd Street, 32nd Floor

New York, New York 10036

c/o Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

c/o RBC Capital Markets, LLC

Brookfield Place, 200 Vesey Street

New York, New York 10281

Ladies and Gentlemen:

Bell Canada, a corporation formed under the federal laws of Canada (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A (the “Underwriters”), acting severally and not jointly, the respective amounts set forth in such Schedule A of (i) US$1,000,000,000 aggregate principal amount of the Company’s 6.875% Fixed-to-Fixed Rate Junior Subordinated Notes, Series A due 2055 (the “2055-A Notes”) and (ii) US$1,250,000,000 aggregate principal amount of the Company’s 7.000% Fixed-to-Fixed Rate Junior Subordinated Notes, Series B due 2055 (the “2055-B Notes” and, together with the 2055-A Notes, the “Notes”), in each case of (i) and (ii), to be guaranteed, on a junior subordinated basis, by BCE Inc. (the “Guarantor”) (the 2055-A Notes, together with the guarantees (the “Guarantee”) of the Guarantor, the “2055-A Securities”, the 2055-B Notes, together with the Guarantee, the “2055-B Securities”, and the 2055-A Securities, together with the 2055-B Securities, the “Securities”).

BofA Securities, Inc., BMO Capital Markets Corp., Citigroup Global Markets Inc. and RBC Capital Markets, LLC have agreed to act as representatives of the several Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the Securities.

The Securities will be issued pursuant to the subordinated indenture (the “Base Indenture”), to be entered into among the Company, the Guarantor and The Bank of New York Mellon, as trustee (the “Trustee”), and to be amended and supplemented by a first supplemental indenture with respect to the 2055-A Notes and a second supplemental indenture with respect to 2055-B Notes (each, a “Supplemental Indenture,” and collectively, the “Supplemental Indentures,” and, together with the Base Indenture, the “Indentures”), each to be dated as of the Closing Date (as defined in Section 4 below), providing for the issuance of the Securities. The Securities will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the “Depositary”).

The Company has prepared and filed with the securities regulatory authorities (the “Qualifying Authorities”) in each of the provinces of Canada (the “Qualifying Provinces”) a short form base shelf prospectus dated February 6, 2025, amending and restating the Company’s short form base shelf prospectus dated May 9, 2024, (together with the documents incorporated by reference therein filed with the Qualifying Authorities, the “Canadian Shelf Prospectus”) in the English and French languages relating to debentures, notes and/or other unsecured evidences of indebtedness or other instruments (collectively, the “Shelf Securities”) under the rules and procedures of the Canadian Securities Administrators established in National Instrument 44-101 Short Form Prospectus Distributions, National Instrument 44-102 Shelf Distributions and the local blanket orders providing temporary exemptions from certain prospectus requirements for qualifying well-known seasoned issuers published by each of the Qualifying Authorities on December 6, 2021 (in each case as, may be amended from time to time, together with any replacement national instruments, policies, regulations, rules, orders and exemptions, the “Shelf Procedures”). The term “Canadian Prospectus” shall mean the Canadian Preliminary Supplement (as defined below) until such time as the Canadian Final Supplement (as defined below) has been filed with the Qualifying Authorities, after which time “Canadian Prospectus” shall mean the Canadian Final Supplement.

The Company and the Guarantor have also prepared and filed with the United States Securities and Exchange Commission (the “Commission”) a joint registration statement on Form F-10 (File Nos. 333-284730-01 and 333-284730), as amended, relating to the Shelf Securities under the Securities Act of 1933, as amended (the “Securities Act”) (the various parts of such registration statement, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement at the time it became effective, as amended at the time such registration statement became effective and including any post-effective amendment thereto, each in the form heretofore delivered or to be delivered to the Representatives, the “Registration Statement”). The term “U.S. Shelf Prospectus” shall mean the base prospectus relating to the Shelf Securities filed as part of the Registration Statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement. The term “U.S. Prospectus” shall refer to the U.S. Preliminary Supplement (as defined below), until such time as a U.S. Final Supplement (as defined below) is thereafter (whether or not such prospectus is required to be filed pursuant to the rules and regulations of the Commission under the Securities Act (the “Securities Act Regulations”)) furnished to the Underwriters after the execution of this Agreement, after which time the term “U.S.

 

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Prospectus” shall refer to the U.S. Final Supplement.

In addition, the Company (A) has prepared and filed (1) with the Qualifying Authorities a preliminary form of prospectus supplement dated February 10, 2025 relating to the Securities and including the Canadian Shelf Prospectus (the “Canadian Preliminary Supplement”) and (2) with the Commission, in accordance with General Instruction II.L. of Form F-10, a preliminary prospectus supplement dated February 10, 2025 consisting of the Canadian Preliminary Supplement with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the Commission and including the U.S. Shelf Prospectus (the “U.S. Preliminary Supplement”), and (B) will prepare and file, (1) with the Qualifying Authorities, pursuant to the Shelf Procedures, a final prospectus supplement relating to the Securities including the Canadian Shelf Prospectus (the “Canadian Final Supplement”), on or before the earlier of the date the Canadian Final Supplement is first sent or delivered to a purchaser or a prospective purchaser and two Business Days (the term “Business Day” means any day other than a day on which banks are permitted or required to be closed in (i) the City of New York, (ii) Montreal, Canada, or (iii) Toronto, Canada) after the date hereof, and (2) with the Commission, in accordance with General Instruction II.L. of Form F-10, a final prospectus supplement consisting of the Canadian Final Supplement with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the Commission and including the U.S. Shelf Prospectus (the “U.S. Final Supplement”).

The U.S. Preliminary Supplement and the Canadian Preliminary Supplement are referred to herein as the “Preliminary Prospectuses,” and the U.S. Final Supplement and the Canadian Final Supplement are referred to herein as the “Final Prospectuses.” Any amendment to the Canadian Prospectus, any amended or supplemental prospectus or auxiliary material, information, evidence, return, report, application, statement or document that may be filed by or on behalf of the Company under the securities laws of the Qualifying Provinces prior to the Closing Date, where such document is deemed to be incorporated by reference into the Canadian Prospectus from the date of this Agreement and prior to the expiry of the period of distribution of the Securities, is referred to herein collectively as the “Supplementary Material.”

For purposes of this Agreement, all references to the Registration Statement, the U.S. Shelf Prospectus, the U.S. Preliminary Supplement, the U.S. Final Supplement, or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”). For purposes of this Agreement, all references to the Canadian Shelf Prospectus, the Canadian Preliminary Supplement and the Canadian Final Supplement, the documents incorporated by reference in the Canadian Prospectus, or any amendment or supplement to any of the foregoing (including any Supplementary Material), shall be deemed to include the copy filed with the Qualifying Authorities pursuant to the System for Electronic Document Analysis and Retrieval (“SEDAR+”).

The Company and the Guarantor have also prepared and filed with the Commission an appointment of agent for service of process upon the Company and the Guarantor, as applicable, on Form F-X in conjunction with the filing of the Registration Statement (the “Form F-X”).

 

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All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “incorporated by reference” or “stated” (and other references of like import) in the Registration Statement, the Canadian Shelf Prospectus, the Canadian Preliminary Supplement, the Canadian Final Supplement, the Canadian Prospectus, the U.S. Shelf Prospectus, the U.S. Preliminary Supplement, the U.S. Final Supplement and the U.S. Prospectus (collectively, the “Filed Documents”) shall be deemed to mean and include all such financial statements and schedules and other information filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the securities laws applicable in the Qualifying Provinces and incorporated by reference in or otherwise deemed to be included in any one or more of the Filed Documents, and all references in this Agreement to amendments or supplements (and other references of like import) to any one or more of the Filed Documents (including any Supplementary Material) shall be deemed to mean and include the filing of any document under the Exchange Act or the securities laws applicable in the Qualifying Provinces which is incorporated by reference or otherwise deemed to be included in any one or more of the Filed Documents.

The Company hereby confirms its agreements with the Underwriters as follows:

Section 1.  Representations and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter as of the date hereof, as of 4:10 p.m. (the “Initial Sale Time”) and as of the Closing Date, as follows:

(a) Compliance with Registration Requirements. The Company is eligible to file a prospectus in the form of a short form shelf prospectus pursuant to the Shelf Procedures. The Canadian Shelf Prospectus has been filed with the Qualifying Authorities and receipts have been obtained from or on behalf of the Qualifying Authorities therefor. The Canadian Preliminary Supplement has been filed with the Qualifying Authorities and no order suspending the distribution of the Securities has been issued by any of the Qualifying Authorities and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by any of the Qualifying Authorities. The Company meets the general eligibility requirements for use of Form F-10 under the Securities Act. The Registration Statement has been declared effective by the Commission under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission.

The Canadian Preliminary Supplement when filed complied, and the Canadian Final Supplement when filed will comply in all material respects, with the securities laws applicable in the Qualifying Provinces, including the Shelf Procedures, as interpreted and applied by the Qualifying Authorities. The U.S. Preliminary Supplement when filed conformed, and the U.S. Final Supplement when filed will conform, to the Canadian Preliminary Supplement and the Canadian Final Supplement, as applicable, except for such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the Commission. At each of the time of its effectiveness and as of the date hereof, the Registration Statement and any amendments or supplements thereto complied and will comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations.

 

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No part of the Registration Statement, when such part became effective, and with respect to any amendment or supplement thereto, no such part, as amended and supplemented as of the date of such amendment or supplement, contained or will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing shall not apply to statements in or omissions made in reliance upon and in conformity with the Underwriter Information (as defined below). As of their respective dates, as of the date hereof and at the Closing Date, each of the U.S. Prospectus, the Canadian Prospectus or any amendment or supplement thereto (including any Supplementary Material), including each document incorporated therein by reference, did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing shall not apply to statements or omissions made in reliance upon and in conformity with the Underwriter Information.

(b) Incorporated Documents. Each document filed or to be filed with the Qualifying Authorities and incorporated or deemed to be incorporated by reference in the Canadian Prospectus complied or will comply when so filed in all material respects with the securities laws applicable in the Qualifying Provinces as interpreted and applied by the relevant Qualifying Authorities, and none of such documents when read together with the other information in the Canadian Prospectus, contained or will contain at the time of its filing and at the Closing Date any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading.

The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the U.S. Shelf Prospectus, the U.S. Preliminary Supplement and the U.S. Final Supplement or otherwise deemed to be a part thereof or included therein, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with any applicable requirements of the Exchange Act, and the rules and regulations of the Commission thereunder (the “Exchange Act Regulations”), and, when read together with the other information in (A) the U.S. Shelf Prospectus at the time the Registration Statement became effective, (B) the Disclosure Package (as defined below) at the Initial Sale Time, and (C) the U.S. Final Supplement as of its date and at the Closing Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading.

As used in this subsection and elsewhere in this Agreement, “Disclosure Package” means the Preliminary Prospectuses, together with any Issuer Free Writing Prospectus, and “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Securities Act Regulations (“Rule 433”), relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

 

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(c) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Securities under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict (except to the extent that such conflict is a modification of or supersedes previous information) with the information contained in the Registration Statement, the Preliminary Prospectuses or the Final Prospectuses. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict (except to the extent that such conflict is a modification of or supersedes previous information) with the information contained in the Registration Statement, the Preliminary Prospectuses or the Final Prospectuses, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives expressly for use in the Disclosure Package or any of the Filed Documents (the “Underwriter Information”), it being understood that the only Underwriter Information consists of the third, seventh, and eighth paragraphs in the section entitled “Underwriting” in the Preliminary Prospectuses and the Final Prospectuses.

(d) Distribution of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Registration Statement, the Preliminary Prospectuses, the Final Prospectuses, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and listed on Annex I hereto or any electronic road show or other written communications reviewed and consented to by the Representatives and listed on Annex II hereto (each of the communications listed on Annex I or Annex II, a “Company Additional Written Communication”). Each such Company Additional Written Communication, when taken together with the Disclosure Package, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Company Additional Written Communication based upon and in conformity with the Underwriter Information.

(e) Authorization of the Indentures. The Base Indenture has been duly authorized by the Company and duly qualified under the Trust Indenture Act of 1939 (the “Trust Indenture Act”), and, when executed and delivered by the Company, will be a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and complies with all applicable legal requirements under securities laws and corporate laws applicable in the Qualifying Provinces and the United States. Each of the Supplemental Indentures has been duly authorized by the Company and, when executed and delivered by the Company, will be legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and complies with all applicable legal requirements under securities laws and corporate laws applicable in the Qualifying Provinces and the United States.

 

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(f) Authorization of the Notes. The Notes will, at their date of issue, be duly and validly issued pursuant to the respective Indenture and will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and the terms of the respective Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(g) The Underwriting Agreement. The Company has duly authorized, executed and delivered this Agreement.

(h) Incorporation and Good Standing of the Company. The Company has been duly incorporated and is validly existing under the laws of Canada and has corporate power and authority to (i) own or lease its properties and carry on its business as it is now carried on and presently proposed to be conducted as is or will be described in the Preliminary Prospectus and the Prospectus, and (ii) execute, deliver and perform its obligations under each of this Agreement and the Indentures. The Company is duly registered to do business as an extra-provincial corporation or a foreign corporation and is in good standing under the laws of each such jurisdiction which requires such registration, except where the failure to be so registered and in good standing could not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the financial condition, earnings, business or results of operations of the Company and its subsidiaries, considered as one entity (a “Material Adverse Effect”).

(i) Incorporation and Good Standing of the Company’s Significant Subsidiaries. Each of Bell Mobility Inc. and Bell Media Inc. (each, a “Significant Subsidiary”) has been duly incorporated and is validly existing under the laws of its jurisdiction of incorporation and has corporate power and authority to carry on its business as it is now carried on and presently proposed to be conducted as is or will be described in the Preliminary Prospectus and the Prospectus.

(j) Company is not an Ineligible Issuer. (i) As of the earliest time after the filing of the Registration Statement that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Notes, and (ii) as of the Initial Sale Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the Securities Act).

(k) Compliance with Laws. The Company and its subsidiaries are in compliance with, and conduct their business in conformity with, all applicable U.S., Canadian and foreign federal, state, provincial and local laws, rules and regulations and all applicable ordinances, judgments, decrees, orders and injunctions of any court or governmental agency or body, the Toronto Stock Exchange and the New York Stock Exchange, except where the failure to be in compliance or conformity would not result in a Material Adverse Change (as defined below).

 

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The Company is a reporting issuer under the securities laws of the Qualifying Provinces of Canada that recognizes the concept of reporting issuer, is not in default under the applicable Canadian securities legislation, and the respective rules, regulations and written and published policies thereunder, except where such default would not result in a Material Adverse Change and is not on the list of defaulting reporting issuers maintained by the Qualifying Authorities in each such Qualifying Province that maintains such a list; and the Company has not filed any confidential material change reports or other documents that have been filed on a confidential basis with the Qualifying Authorities that remain confidential at the date hereof.

(l) Absence of Further Requirements. No consent, approval, authorization, registration or qualification of any court or regulatory, administrative or other governmental body of Canada or any province of Canada or the United States or any individual state of the United States or under any statute, order, rule or regulation of any such regulatory, administrative or other governmental body, is required on the part of the Company in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Canadian Final Supplement, the U.S. Final Supplement, the Disclosure Package and the Registration Statement, except such as (1) have been made or obtained under the Securities Act, the applicable Canadian securities laws, and the Trust Indenture Act, (2) may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package, the Canadian Final Supplement and the U.S. Final Supplement and except for the filing with the Qualifying Authorities of this Agreement and any other supporting documents to be filed with the Canadian Final Supplement pursuant to the Shelf Procedures.

(m) Non-Contravention. Neither the creation nor the issue of the Securities, nor the sale thereof in accordance with this Agreement, conflict with, result in a breach of, or constitute a default under the terms of (i) the articles or by-laws of the Company, or (ii) any indenture or other agreement or instrument to which the Company is a party, except for covenants contained in certain indentures and other agreements to which the Company is a party that may restrict the creation, issue and/or sale of debt securities (or other indebtedness) if certain debt incurrence or maintenance tests are not satisfied, or (iii) any order, rule or regulation applicable to the Company of any Canadian federal or provincial administrative agency or governmental body, except as in the case of (ii) and (iii) would not result in a Material Adverse Effect.

(n) Description of the Securities and the Indentures. The Securities and the Indentures conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Final Prospectuses.

(o) No Material Actions or Proceedings. Except as disclosed in the Final Prospectuses and the Disclosure Package, there are no legal or governmental proceedings known to be pending to which the Company or any of its subsidiaries, is a party or to which any of the properties of the Company or any of its subsidiaries is subject, that are required under applicable securities laws to be described in the Final Prospectuses and the Disclosure Package.

(p) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package, subsequent to the respective dates as of which information is given in the Disclosure Package, there has been no material adverse change in the financial condition, earnings, business or results of operations of the Company and its subsidiaries, considered as one entity (any such change is called a “Material Adverse Change”).

 

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(q) Financial Statements. The financial statements together with the related notes thereto included or incorporated by reference in each of the Registration Statement, the Canadian Prospectus, and the U.S. Prospectus, comply in all material respects with the applicable requirements of the securities laws applicable in the Qualifying Provinces and present fairly the financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with the International Financial Reporting Standards as issued by the International Accounting Standards Board applied on a consistent basis throughout the periods covered thereby.

(r) Independent Accountants. Deloitte LLP, who have expressed their opinion with respect to the Company’s audited financial statements incorporated by reference in the Canadian Final Supplement, the U.S. Final Supplement, the Disclosure Package and the Registration Statement, are independent public accountants as required by the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board and are independent auditors as required by the Canada Business Corporations Act and the regulations thereunder, together with applicable Canadian securities laws.

(s) Capitalization. All the outstanding shares of capital stock or other equity interests of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer (except as may be set out in the documents of each Significant Subsidiary) or any other claim of any third party, in each case, except (i) as otherwise described in the Registration Statement, the Canadian Prospectus, and the U.S. Prospectus or (ii) as would not result in a Material Adverse Change.

(t) No Stabilization. The Company and the Guarantor have not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.

(u) Company Not an Investment Company. The Company has been advised of the rules and requirements under the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder (the “Investment Company Act”). The Company is not, nor will be, after receipt of payment for the Securities and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the Disclosure Package and the Final Prospectuses, required to register as an “investment company” within the meaning of the Investment Company Act.

(v) No Unlawful Contributions or Other Payments. None of the Company or any of its subsidiaries or, to the Company’s knowledge, any director, officer, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), the Corruption of Foreign Public Officials Act (Canada) (the “CFPOA”) or other applicable anti-corruption law, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, the CFPOA or other applicable anti-corruption law and the Company and its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA, the CFPOA and other applicable anti-corruption law and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

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(w) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Proceeds of Crime Money (Money Laundering) Act (Canada) and the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

(x) No Conflict with OFAC Laws. None of the Company or any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is an individual or entity (“Person”) currently the target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the Financial Transactions Reports Analysis Centre of Canada or other relevant sanctions authority (collectively, “Sanctions”); and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.

(y) Disclosure Controls and Procedures. The Company maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the securities laws of the Qualifying Provinces and the Exchange Act; and such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures have been evaluated for effectiveness as required by Rule 13a-15 of the Exchange Act.

The certificates required under Section 7(g) signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.

Section 2.  Representations and Warranties of the Guarantor. The Guarantor hereby represents, warrants and covenants to each Underwriter as of the Initial Sale Time and as of the Closing Date, as follows:

 

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(a) Incorporated Documents. Each document filed or to be filed with the Qualifying Authorities and incorporated or deemed to be incorporated by reference in the Canadian Prospectus complied or will comply when so filed in all material respects with the securities laws applicable in the Qualifying Provinces as interpreted and applied by the relevant Qualifying Authorities, and none of such documents when read together with the other information in the Canadian Prospectus, contained or will contain at the time of its filing and at the Closing Date any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading.

The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the U.S. Shelf Prospectus, the U.S. Preliminary Supplement and the U.S. Final Supplement or otherwise deemed to be a part thereof or included therein, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the Exchange Act Regulations, and, when read together with the other information in (A) the U.S. Shelf Prospectus at the time the Registration Statement became effective, (B) the Disclosure Package at the Initial Sale Time, and (C) the U.S. Final Supplement as of its date and at the Closing Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading.

(b) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Guarantor.

(c) Authorization of the Indentures. The Base Indenture has been duly authorized by the Guarantor and, when executed and delivered by the Guarantor, will be a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and complies with all applicable legal requirements under securities laws and corporate laws applicable in the Qualifying Provinces and the United States. Each of the Supplemental Indentures has been duly authorized by the Guarantor and, when executed and delivered by the Guarantor, will be legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and complies with all applicable legal requirements under securities laws and corporate laws applicable in the Qualifying Provinces and the United States.

(d) The Guarantee. The Guarantee of the Notes constitutes a legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms and the terms of the Indentures, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(e) Incorporation of the Guarantor. The Guarantor has been incorporated and is existing under the laws of Canada, has not been dissolved and has the corporate power and capacity to (i) carry on its business as it is now being conducted, (ii) own or lease its material properties and assets, and (iii) execute, deliver and perform its obligations under each of this Agreement and the Indentures.

 

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(f) Compliance with Laws. The Guarantor is a reporting issuer under the securities laws of the Qualifying Provinces of Canada that recognize the concept of reporting issuer, is not in default under the applicable Canadian securities legislation, and the respective rules, regulations and written and published policies thereunder, except where such default would not result in a Material Adverse Change and is not on the list of defaulting reporting issuers maintained by the Qualifying Authorities in each such Qualifying Province that maintains such a list; and the Company has not filed any confidential material change reports or other documents that have been filed on a confidential basis with the Qualifying Authorities that remain confidential at the date hereof.

(g) Non-Contravention. Neither the creation nor the issue of the Guarantee, nor the sale of the Securities in accordance with this Agreement, conflict with, result in a breach of, or constitute a default under the terms of (i) the articles or by-laws of the Guarantor, or (ii) any indenture or other agreement or instrument to which the Guarantor is a party, except for covenants contained in certain indentures and other agreements to which the Guarantor is a party that may restrict the creation, issue and/or sale of debt securities (or other indebtedness) if certain debt incurrence or maintenance tests are not satisfied, or (iii) any order, rule or regulation applicable to the Guarantor of any Canadian federal or provincial administrative agency or governmental body, except as in the case of (ii) and (iii) would not result in a Material Adverse Effect.

(h) No Material Actions or Proceedings. Except as disclosed in the Final Prospectuses and the Disclosure Package, there are no legal or governmental proceedings known to be pending to which the Guarantor or any of its subsidiaries, is a party or to which any of the properties of the Guarantor or any of its subsidiaries is subject, that are required under applicable securities laws to be described in the Final Prospectuses and the Disclosure Package.

(i) Guarantor Not an Investment Company. The Guarantor has been advised of the rules and requirements under the Investment Company Act. The Guarantor is not, nor will be, after receipt of payment for the Securities and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the Disclosure Package and the Final Prospectuses, required to register as an “investment company” within the meaning of the Investment Company Act.

Section 3.  Representations and Warranties of the Underwriters. Each Underwriter hereby represents, warrants and covenants, in each case severally, to the Company and the Guarantor as of the date hereof, as of the Initial Sale Time and as of the Closing Date, as follows:

(a) Canadian Securities Laws. It will only, and will ensure that its affiliates only, offer for sale, solicit offers to purchase, sell or carry out any act in connection with the sale of, Securities, in Canada or to or for the account of Canadian resident investors, pursuant to an available exemption from Canadian prospectus requirements in accordance with Section 4(d). It agrees that it will not, and will ensure that its affiliates do not, distribute the Securities under any prospectus to a purchaser located in Canada or that is a resident in Canada. It will include comparable provisions in any sub-underwriting, banking group or selling group agreement or similar agreement with respect to the Securities that may be entered into by such Underwriter in connection with the Offering.

 

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Notwithstanding the foregoing, the U.S. Prospectus may form part of the Canadian preliminary offering memorandum and Canadian final offering memorandum referred to in Section 4(d) of this Agreement in respect of the offer and sale of Securities on a private placement basis in Canada thereunder.

(b) Free Writing Prospectus. Each Underwriter represents and warrants to, and agrees with, the Company, the Guarantor and each other Underwriter that it has not made, and will not make, any offer relating to the Securities that would constitute a “free writing prospectus” (as defined in Rule 405 under the U.S. Exchange Act) without the Company’s written consent.

Section 4.  Purchase, Sale and Delivery of the Securities.

(a) The Securities. The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Securities upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the aggregate principal amount of Securities set forth opposite their names on Schedule A at a purchase price of 99.000% of the principal amount of the 2055-A Securities with respect to the 2055-A Securities and at a purchase price of 99.000% of the principal amount of the 2055-B Securities with respect to the 2055-B Securities.

(b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Allen Overy Shearman Sterling US LLP at 599 Lexington Avenue, New York, New York 10022-6069 (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on February 18, 2025, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the “Closing Date”).

(c) Public Offering of the Securities. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the Final Prospectuses (but subject to Section 3(a)), their respective portions of the Securities as soon after the date and time of the execution of this Agreement as the Representatives, in their sole judgment, have determined is advisable and practicable. All sales of Securities in the United States shall only be made to institutions that satisfy applicable state securities registration exemptions.

(d) Canadian Private Placement. The Underwriters shall only provide purchasers located in Canada or that are resident of Canada with the Canadian preliminary offering memorandum and the Canadian final offering memorandum, in each case in the form approved by the Company and the Underwriters, pursuant to which each such purchaser shall be deemed to make the representations and warranties contained therein for the benefit of the Company and the Underwriters, and any Company Additional Written Communication. The Underwriters agree that they will distribute the Securities to residents in Canada only on a private placement basis to non-individual purchasers located or resident in any province of Canada who qualify as both “accredited investors” as defined in Section 73.3 of the Securities Act (Ontario) or National Instrument 45-106 – Prospectus Exemption (“NI 45-106”), as applicable, and as “permitted clients” within the meaning of National Instrument 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations and further represent and agree that, except in accordance with the foregoing, they have not undertaken and will not undertake any advertisement or solicitation respecting the Securities to a prospective purchaser resident in Canada.

 

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Each Underwriter will provide the Company with the information pertaining to each purchaser of the Securities in Canada as is required to be disclosed in Schedule 1 of Form 45-106F1 under NI 45-106 within three (3) Business Days after the Closing Date.

(e) Payment for the Securities. Payment for the Securities shall be made at the Closing Date by wire transfer of immediately available funds to the order of the Company.

The Representatives represent to the Company that they have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Securities that the Underwriters have agreed to purchase. The Representatives may (but shall not be obligated to) make payment for any Securities to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.

(f) Delivery of the Notes. The Company shall, upon receipt of a wire transfer of immediately available funds for the amount of the purchase price therefor, deliver or cause to be delivered to the Representatives, for the accounts of the several Underwriters, certificates for the Notes at the Closing Date. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.

Section 5.  Covenants of the Company and Guarantor. The Company and the Guarantor covenant and agree with each Underwriter as follows:

(a) Compliance with Securities Regulations and Commission Requests. The Company and Guarantor agree (i) to make no amendment or supplement (other than an amendment or supplement as a result of the Company’s or the Guarantor’s filing of a report under the Exchange Act) to the Registration Statement, the Final Prospectuses or the Disclosure Package after the date on which any Underwriter has agreed to purchase or solicit offers to purchase Securities in the United States and prior to the Closing Date without the consent of the Underwriters, such consent not to be unreasonably withheld; (ii) to prepare the Disclosure Package or Final Prospectuses in a form previously approved by the Underwriters, acting reasonably, and to file the Final Prospectuses pursuant to the Securities Act and the applicable Canadian securities laws within the time required by such rule; (iii) to make no amendment or supplement to the Registration Statement or the Final Prospectuses (other than an amendment or supplement as a result of filings by the Company or the Guarantor under the Exchange Act and other than the filing of prospectuses, preliminary prospectuses, preliminary prospectus supplements, free-writing prospectuses and other documents pursuant to Rule 433 under the Securities Act relating to securities other than the Securities purchased through or by such Underwriters), at any other time prior to having afforded each Underwriter a reasonable opportunity to review it; and (iv) to file promptly all other material required to be filed by the Company with the Qualifying Authorities or with the Commission pursuant to Rule 433(d) under the Securities Act; to file promptly all reports or information statements required to be filed by the Company or the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities, and during such same period to advise such Underwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectuses has been filed, or transmitted for filing to, the Qualifying Authorities or the Commission in connection with the offering or sale of the Securities, of the issuance by the Qualifying Authorities or the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Securities, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Disclosure Package or the Final Prospectuses or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, to use promptly its commercially reasonable efforts to obtain its withdrawal.

 

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(b) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, electronic copies in “.pdf” format of the Preliminary Prospectuses, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Preliminary Prospectuses and the Final Prospectuses and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(c) Continued Compliance with Securities Laws. The Company and Guarantor will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Final Prospectuses. If, at any time when a prospectus relating to the Securities (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act, any event occurs as a result of which the Final Prospectuses or the Disclosure Package, each as then supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectuses or the Disclosure Package to comply with the Securities Act and Exchange Act and the requirements of any Qualifying Authority, the Company and the Guarantor promptly will (i) notify the Underwriters of such event, (ii) prepare and file with the Commission, subject to Section 5(a), an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any supplement to the Final Prospectuses or the Disclosure Package to the Underwriters in such quantities as they may reasonably request to effect such delivery. Notwithstanding the foregoing, in no event shall the Company or the Guarantor be required to qualify to transact business or to take any action that would subject it to general service of process in any jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business.

(d) Use of Proceeds. The Company and the Guarantor shall apply the net proceeds from the sale of the Securities sold by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectuses and the Final Prospectuses.

(e) Depositary. The Company will cooperate with the Underwriters and use its reasonable best efforts to permit the Securities to be eligible for clearance and settlement through the facilities of the Depositary.

 

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(f) Periodic Reporting Obligations. The Guarantor shall timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.

(g) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any U.S. dollar-denominated debt securities of the Company similar to the Securities or securities exchangeable for or convertible into U.S. dollar-denominated debt securities similar to the Securities (other than as contemplated by this Agreement with respect to the Securities).

(h) Final Term Sheet. The Company will prepare a final term sheet containing only a description of the Securities, in a form approved by the Underwriters and attached as Exhibit C hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”).

(i) Permitted Free Writing Prospectuses. The Company represents that it has not made, and agrees that unless it obtains the prior written consent of the Representatives, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act required to be filed with the Commission; provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus included in Exhibit C hereto; and consents to the use by any Underwriter of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus, or (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Securities or their offering and that is included in the Disclosure Package; provided that each Underwriter severally covenants with the Company not to take any action without the Company’s consent (which consent shall not be unreasonably withheld and shall be confirmed in writing) that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act, or with the Qualifying Authorities, a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.

(j) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities.

The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance and each such waiver shall constitute evidence of their authority to do so on behalf of the other Underwriters.

 

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Section 6. Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectuses and the Final Prospectuses, and all amendments and supplements thereto, and this Agreement, the Indentures and the Securities, (v) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indentures and the Securities, (vi) any fees payable in connection with the rating of the Securities with the ratings agencies, (vii) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by the Depositary for “book-entry” transfer, and (viii) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section. Except as provided in Sections 8, 10 and 11 hereof, the Underwriters shall pay their own expenses, including, without limitation, the fees and disbursements of their counsel, the cost of advertising by the Underwriters and travel and hotel expenses.

Section 7.  Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:

(a) Effectiveness of Registration Statement. The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, and the Company shall not have received from the Commission any notice objecting to use of the registration statement form. The Preliminary Prospectus and the Final Prospectus shall have been filed with the Commission in accordance with General Instruction II.L. of Form F-10.

(b) Accountants’ Comfort Letter. On the date hereof, the Representatives shall have received from Deloitte LLP, independent registered chartered professional accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectuses and the Final Prospectuses, except that the specified date referred to therein for the carrying out of procedures shall be no more than three Business Days prior to the date hereof.

(c) Bring-down Comfort Letter.

 

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On the Closing Date, the Representatives shall have received from Deloitte LLP, independent registered chartered professional accountants for the Company, a letter dated such date, in form and substance reasonably satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 7, except that the specified date referred to therein for the carrying out of procedures shall be no more than three Business Days prior to the Closing Date.

(d) No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing Date:

(i) in the judgment of the Representatives there has been no Material Adverse Change, or any developments that could reasonably be expected to result in a Material Adverse Change; and

(ii) there shall not have occurred any downgrading in or withdrawal of, nor shall any notice have been given of any intended or potential downgrading or withdrawal or of any review for a possible change that does not indicate the direction of the possible change of, the rating accorded the senior unsecured debt securities of the Company or the Guarantor by S&P Global Ratings, Moody’s Investors Service, Inc. or DBRS Limited.

(e) Opinion of Counsel for the Company. (i) On the Closing Date, the Representatives shall have received the opinion of Sullivan & Cromwell LLP, U.S. counsel for the Company, dated the Closing Date, the form of which is attached as Exhibit A. (ii) On the Closing Date, the Representatives shall have received the opinion of Stikeman Elliott LLP, Canadian counsel for the Company, dated the Closing Date, the form of which is attached as Exhibit B.

(f) Opinion of Counsel for the Underwriters. (i) On the Closing Date, the Representatives shall have received the opinion of Allen Overy Shearman Sterling US LLP, U.S. counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be reasonably requested by the Underwriters. (ii) On the Closing Date, the Representatives shall have received the opinion of McCarthy Tétrault LLP, Canadian counsel for the Underwriters, dated the Closing Date.

(g) Officers’ Certificate. On the Closing Date, the Representative shall have received certificates dated the Closing Date signed on each of the Company’s and Guarantor’s behalf by any one of the Chief Executive Officer, the Chief Financial Officer or the Treasurer of the Company and Guarantor, respectively, or such other officer of the Company or Guarantor, respectively, as may be acceptable to the Underwriters, addressed to the Underwriters to the effect that to the best of the knowledge and belief of the person so signing, without personal liability, after having made due inquiry:

(i) since the date of the Disclosure Package:

(x) there has not been any Material Adverse Change;

 

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(y) there have been no transactions entered into by the Company, the Guarantor or any of their respective subsidiaries out of the ordinary course of business which are material to the Company, the Guarantor and their respective subsidiaries on a consolidated basis and taken as a whole; and (z) to the knowledge of the Company and the Guarantor there are no actions, suits or proceedings pending or threatened against or affecting the Company, the Guarantor or any of their respective subsidiaries at law or before or by any federal, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially and adversely affect the Company, the Guarantor and their respective subsidiaries on a consolidated basis and taken as a whole;

(ii) the Company, the Guarantor and their respective subsidiaries have no contingent liabilities other than in the ordinary course of business which are material to the Company, the Guarantor and their respective subsidiaries on a consolidated basis and taken as a whole and which are not disclosed in the Disclosure Package or the Final Prospectuses or in the documents supplied to or filed with the Qualifying Authorities and the Commission deemed to be incorporated by reference in the Final Prospectuses, each as amended or supplemented;

(iii) no default exists under any trust instrument or agreement securing or otherwise relating to the indebtedness of the Company, the Guarantor and any of their respective subsidiaries which is material to the Company, the Guarantor and their respective subsidiaries on a consolidated basis and taken as a whole; and

(iv) the representations and warranties of the Company and the Guarantor as of the date of the Disclosure Package to an Underwriter are, to the extent applicable, true and correct as of the Closing Date.

(h) Pricing Chief Financial Officer’s Certificate. As of the date hereof, the Representatives shall have received from the Chief Financial Officer of the Guarantor a certificate dated the date hereof with respect to certain financial information contained in the Registration Statement, the Disclosure Package and the Preliminary Prospectuses substantially in the form of Exhibit D hereto.

(i) Closing Chief Financial Officer’s Certificate. On the Closing Date, the Representatives shall have received from the Chief Financial Officer of the Guarantor a certificate dated the Closing Date with respect to certain financial information contained in the Registration Statement, the Disclosure Package and the Final Prospectuses substantially in the form of Exhibit D hereto.

If any condition specified in this Section 7 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 6, 8, 10, 11, 19, 20 and 23 shall at all times be effective and shall survive such termination.

Section 8.  Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the Representatives pursuant to Section 7 or Section 13(i) (in the case of the Guarantor’s securities), or if the sale to the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Representatives and the other Underwriters or such Underwriters as have terminated this Agreement with respect to themselves, severally, upon demand for all out-of-pocket expenses (approved in writing by the Representatives in the case of the other Underwriters) that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Securities, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.

 

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Section 9.  Effectiveness of this Agreement. This Agreement shall not become effective until the execution of this Agreement by the parties hereto.

Section 10.  Indemnification.

(a) Indemnification of the Underwriters. The Company shall indemnify and save each Underwriter, and each Underwriter’s directors, officers, employees, agents, affiliates and controlling persons (each an “Indemnified Person”), harmless against and from all liabilities, claims, demands, losses (other than losses of profit), costs, damages (other than consequential damages) and expenses to which the Indemnified Person may be subject or which the Indemnified Person may suffer or incur, whether under the provisions of any statute or otherwise, in any way caused by, or arising directly or indirectly from or in consequence of:

(i) any untrue statement or alleged untrue statement of a material fact (except an untrue statement which is based upon and in conformity with the Underwriter Information) contained in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in the Disclosure Package, Preliminary Prospectuses or Final Prospectuses (or, in each case, any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(ii) any order made or any inquiry, investigation or other proceeding commenced or threatened by any one or more securities commissions (not based upon the activities or the alleged activities of the Underwriters or their banking or selling group members, if any) based upon any misrepresentation or alleged misrepresentation (except a misrepresentation which is based upon and in conformity with the Underwriter Information) contained in the Registration Statement, the Disclosure Package, Preliminary Prospectuses or Final Prospectuses (or, in each case, any amendment or supplement thereto), including the documents incorporated therein by reference, preventing or restricting the trading or distribution of the Securities in the United States; or

(iii) the Company not complying with any requirement under the securities laws in connection with the distribution of the Securities in the United States or Canada.

Each Underwriter shall be entitled, as trustee, to enforce the obligations contained herein on behalf of any other parties entitled to indemnity hereunder.

 

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(b) Indemnification of the Company, its Directors and Officers. Each Underwriter shall indemnify and save each of the Company and its directors, officers, employees, agents and controlling persons harmless against and from all liabilities, claims, demands, losses (other than losses of profit), costs, damages (other than consequential damages) and expenses which it may suffer, but only with reference to the Underwriter Information.

(c) Notifications, Settlements and Other Indemnification Procedures. If any claim contemplated by the first paragraph of Section 10(a) shall be asserted against any Indemnified Person, such Indemnified Person shall notify the Company as soon as possible of the nature of such claim and the Company shall be entitled (but not required) to assume the defense of any suit brought to enforce such claim, provided however, that the defense shall be through legal counsel selected by the Company and acceptable to the Indemnified Person acting reasonably and that no settlement may be made by the Company or the Indemnified Person without the prior written consent of the other, such consent not to be unreasonably withheld. The Indemnified Person shall have the right to retain its own counsel in any proceeding relating to a claim contemplated by the first paragraph of Section 10(a) if:

(i) the Indemnified Person has been advised in writing by counsel that there may be a conflict of interest in having the Indemnified Person represented by the same counsel as the Company or that there may be a reasonable legal defense available to the Indemnified Person which is different from or additional to a defense available to the Company (in which case the Company shall not have the right to assume the defense of such proceedings on the Indemnified Person’s behalf);

(ii) the Company shall not have taken the defense of such proceedings and employed counsel within ten Business Days after notice of commencement of such proceedings; or

(iii) the employment of such counsel has been authorized in writing by the Company in connection with the defense of such proceeding;

and, in any such event, the reasonable fees and expenses of such Indemnified Person’s counsel (on a solicitor and his client basis) shall be paid by the Company, provided that the Company shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate law firm (in addition to any local counsel) for all such Indemnified Persons.

Section 11.  Contribution. If the indemnification provided for in Section 10(a) or (b) is for any reason unavailable to or insufficient to hold harmless an Indemnified Person in respect of any liabilities, claims, demands, losses, costs, damages or expenses referred to therein, then each indemnifying person shall contribute to the aggregate amount of such liabilities, claims, demands, losses, costs, damages or expenses incurred by such Indemnified Person, as incurred, (x) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities giving rise to such claim pursuant to this Agreement or (y) if the allocation provided by clause (x) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

 

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(i)  The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from such offering of the Securities pursuant to this Agreement (before deducting expenses, but net of the total underwriting discount and commissions received by the Underwriters) received by the Company and the total underwriting discount and commissions received by the Underwriters.

(ii)  The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriter Information supplied by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(iii)  The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section. The aggregate amount of liabilities, claims, demands, losses, costs, damages or expenses incurred by an Indemnified Person and referred to above in this Section shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Person in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

(iv)  Notwithstanding the provisions of this Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by which (i) the total price at which the Securities purchased by such Underwriter and distributed to the public were offered to the public exceeds (ii) the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.

(v)  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

(vi)  For purposes of this Section 11, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company under the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.

 

22

The Underwriters’ respective obligations to contribute pursuant to this Section shall be several in proportion to their respective underwriting obligations and not joint.

Section 12.  Default of One or More of the Several Underwriters. If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities, which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportions that the aggregate principal amounts of such Securities set forth opposite their respective names on Schedule A bear to the aggregate principal amount of such Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such Securities and the aggregate principal amount of such Securities with respect to which such default occurs exceeds 10% of the aggregate principal amount of Securities to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party, other than such defaulting Underwriter, except that the provisions of Sections 6, 8, 10, 11, 19, 20 and 23 shall at all times be effective and shall survive such termination. In any such case, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectuses or the Final Prospectuses or any other documents or arrangements may be effected.

As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 12. Any action taken under this Section 12 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

Section 13.  Termination of this Agreement. Prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Guarantor’s securities shall have been suspended by the Commission, the New York Stock Exchange, or the Toronto Stock Exchange; or trading in securities generally on either the Nasdaq Stock Market, the Toronto Stock Exchange and the New York Stock Exchange shall have been suspended; or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or the Financial Institution Regulatory Authority; (ii) a general banking moratorium shall have been declared by any federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial change or development in United States’ or international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable to market the Securities in the manner and on the terms described in the Disclosure Package or the Final Prospectuses or to enforce contracts for the sale of securities, provided that the volatility of prices on the New York Stock Exchange, Toronto Stock Exchange, Nasdaq Stock Market and/or other international stock exchanges prior to the date of this Agreement shall not be grounds for termination under this Section 13(iii); or (iv) there shall have occurred a material disruption in securities settlement or clearance services.

 

23

Any termination pursuant to this Section 13 shall be without liability of any party to any other party except as provided in Sections 6 and 8 hereof, and provided further that Sections 6, 8, 10, 11, 19, 20 and 23 shall survive such termination and remain in full force and effect.

Section 14.  No Fiduciary Duty. The Company and the Guarantor hereby acknowledge that the Underwriters are acting solely as the principal of the Company in connection with the purchase and sale of the Securities. The Company and the Guarantor further acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis, and in no event do the parties intend that the Underwriters act or be responsible as a financial advisor, agent or fiduciary to the Company, the Guarantor or their respective affiliates, stockholders, creditors or employees or any other party in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of such purchase and sale of the Company’s securities, either before or after the date hereof. The Company and the Guarantor acknowledge that no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company or the Guarantor with respect to the purchase and sale of the Securities pursuant to this Agreement or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantor on other matters) and no Underwriter has any obligation to the Company or the Guarantor with respect to the offering contemplated hereby except the obligations set forth in this Agreement. The Company and the Guarantor hereby acknowledge that the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and the Guarantor have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.

This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters with respect to the subject matter hereof. The Company and the Guarantor hereby waive and release, to the fullest extent permitted by law, any claims that the Company or the Guarantor may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.

Section 15.  Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company and the Guarantor, of their officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain operative and in full force and effect, regardless of any (i) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter, the Company, the Guarantor, the officers or employees of the Company and the Guarantor, or any person controlling the Company or the Guarantor, as the case may be or (ii) acceptance of the Securities and payment for them hereunder. Sections 10, 11, 15, 19, 20 and 23 will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement.

 

24

Section 16.  Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:

If to the Representatives:

BofA Securities, Inc.

114 W 47th Street

NY8-114-07-01

New York, New York 10036

Facsimile: (212) 901-7881

Attn: High Grade Transaction Management/Legal

BMO Capital Markets Corp.

151 West 42nd Street, 9th Floor

New York, New York 10036

Attn: US Syndicate

Email: IGSyndicate@bmo.com

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

Facsimile: (646) 291-1469

Attn: General Counsel

RBC Capital Markets, LLC

Brookfield Place, 200 Vesey Street, 8th Floor

New York, New York 10281

Attn: DCM Transaction Management/Scott Primrose

Email: TMGUS@rbccm.com

with a copy to:

Allen Overy Shearman Sterling US LLP

599 Lexington Avenue

New York, New York 10022-6069

Attn: Richard B. Alsop; Ryan E. Robski

Email: Richard.Alsop@aoshearman.com; Ryan.Robski@aoshearman.com

If to the Company or the Guarantor:

Bell Canada

1, Carrefour Alexander-Graham-Bell

Building A, 7th Floor

Verdun, Québec

Canada H3E 3B3

Attn: Corporate Secretary

Email: corporate.secretariat@bell.ca

 

25

with a copy to:

Sullivan & Cromwell LLP

125 Broad Street

New York, New York 10004

Attn: Mario Schollmeyer

Email: schollmeyerm@sullcrom.com

Any party hereto may change the address for receipt of communications by giving written notice to the others.

Section 17.  Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 12 hereof, and to the benefit of the directors, officers, employees, affiliates, agents and controlling persons referred to in Sections 10 and 11, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.

Section 18.  Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

Section 19.  (a) Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.

(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, or the courts of the State of New York in each case located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. Each party not located in the United States irrevocably appoints Puglisi & Associates as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York.

 

26

Section 20.  Trial by Jury. THE COMPANY AND THE GUARANTOR (EACH ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS AND AFFILIATES) AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 21.  Research Analyst Independence. The Company and the Guarantor acknowledge that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, the Guarantor, their subsidiaries and/or the offering of the Securities that differ from the views of their respective investment banking divisions. The Company and the Guarantor hereby waive and release, to the fullest extent permitted by law, any claims that the Company or the Guarantor may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company and the Guarantor by such Underwriters’ investment banking divisions. The Company and the Guarantor acknowledge that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.

Section 22.  General Provisions. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 10 and the contribution provisions of Section 11, and is fully informed regarding said provisions.

Section 23.  Recognition of the U.S. Special Resolution Regimes.

(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

27

(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

For purposes of this Section 23, the following definitions apply:

“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

“Covered Entity” means any of the following:

 

(i)

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii)

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)

a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

[Signature Page Follows]

 

28

If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.

 

 

[Bell Canada – Signature Page to Underwriting Agreement]

The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.

BOFA SECURITIES, INC.

BMO CAPITAL MARKETS CORP.

CITIGROUP GLOBAL MARKETS INC.

RBC CAPITAL MARKETS, LLC

Acting as Representatives of the several Underwriters

named in the attached Schedule A.

 

[Bell Canada – Signature Page to Underwriting Agreement]

 

[Bell Canada – Signature Page to Underwriting Agreement]

 

[Bell Canada – Signature Page to Underwriting Agreement]

 

[Bell Canada – Signature Page to Underwriting Agreement]

 

[Bell Canada – Signature Page to Underwriting Agreement]

SCHEDULE A

 

Underwriters		Aggregate Principal Amount of 2055-A Notes				Aggregate Principal Amount of 2055-B Notes
BofA Securities, Inc.			US$200,000,000				US$250,000,000
BMO Capital Markets Corp.			200,000,000				250,000,000
Citigroup Global Markets Inc.			85,000,000				106,250,000
RBC Capital Markets, LLC			85,000,000				106,250,000
CIBC World Markets Corp.			70,000,000				87,500,000
Scotia Capital (USA) Inc.			70,000,000				87,500,000
TD Securities (USA) LLC			70,000,000				87,500,000
Desjardins Securities Inc.			52,500,000				65,625,000
National Bank of Canada Financial Inc.			52,500,000				65,625,000
Barclays Capital Inc.			27,500,000				34,375,000
Mizuho Securities USA LLC			27,500,000				34,375,000
SMBC Nikko Securities America, Inc.			27,500,000				34,375,000
Wells Fargo Securities, LLC			27,500,000				34,375,000
Casgrain & Company Limited			5,000,000				6,250,000
Total			US$1,000,000,000				US$1,250,000,000

 

Schedule A

ANNEX I

ISSUER FREE WRITING PROSPECTUS

Final Term Sheet dated February 12, 2025.

 

Annex I

ANNEX II

COMPANY ADDITIONAL WRITTEN COMMUNICATION

Investor Presentation titled “Bell Canada Hybrid Deal Roadshow” dated February 10, 2025

 

Annex II

EXHIBIT A

FORM OF OPINION OF SULLIVAN & CROMWELL LLP

 

A-1

EXHIBIT B

FORM OF OPINION OF STIKEMAN ELLIOTT LLP

 

B-1

EXHIBIT C

FORM OF FINAL TERM SHEET

BELL CANADA

Pricing Term Sheet

February 12, 2025

 

Issuer:		Bell Canada
Guarantor:		BCE Inc.
Guarantee:		The payment of principal, interest and other payment obligations will be fully, irrevocably and unconditionally guaranteed by the Guarantor on a junior subordinated basis.
Security Title:		6.875% Fixed-to-Fixed Rate Junior Subordinated Notes, Series A due 2055 (the “2055-A Notes”)   7.000% Fixed-to-Fixed Rate Junior Subordinated Notes, Series B due 2055 (the “2055-B Notes” and, together with the 2055-A Notes, the “Notes”)
Expected Ratings (Moody’s / S&P / DBRS)*:		[Redacted]
Trade Date:		February 12, 2025
Settlement Date**:		February 18, 2025 (T+3)
Principal Amount:		2055-A Notes: US$1,000,000,000   2055-B Notes: US$1,250,000,000
Maturity Date:		September 15, 2055
First Reset Date:		2055-A Notes: September 15, 2030 (the “2055-A First Reset Date”)   2055-B Notes: September 15, 2035 (the “2055-B First Reset Date” and, together with the 2055-A First Reset Date, each a “First Reset Date”)
Coupon:		2055-A Notes: (i) from and including February 18, 2025, to but excluding the 2055-A First Reset Date, at an annual rate of 6.875% and thereafter (ii) from and including the 2055-A First Reset Date and on every 2055-A Interest Reset Date, with respect to each Subsequent Fixed Rate Period, to but excluding, the next succeeding 2055-A Interest Reset Date, the Maturity Date or the date of redemption, as the case may be, at an annual rate equal to the Five-Year U.S. Treasury Rate as of the most recent Interest Reset Determination Date plus a spread of 2.390%, to be reset on each 2055-A Interest Reset Date; provided, that the interest rate during any Subsequent Fixed Rate Period will not reset below 6.875% (which equals the initial interest rate on the 2055-A Notes).   2055-B Notes: (i) from and including February 18, 2025, to but excluding the 2055-B First Reset Date, at an annual rate of 7.000% and thereafter (ii) from and including the 2055-B First Reset Date and on every 2055-B Interest Reset Date, with respect to each Subsequent Fixed Rate Period, to but excluding, the next succeeding 2055-B Interest Reset Date, the Maturity Date or the date of redemption, as the case may be, at an annual rate equal to the Five-Year U.S. Treasury Rate as of the most

 

C-1

		recent Interest Reset Determination Date plus a spread of 2.363%, to be reset on each 2055-B Interest Reset Date; provided, that the interest rate during any Subsequent Fixed Rate Period will not reset below 7.000% (which equals the initial interest rate on the 2055-B Notes).
Price to Public:		2055-A Notes: 100.000% of principal amount   2055-B Notes: 100.000% of principal amount
Interest Payment Dates:		Semi-annually in arrears on March 15 and September 15 of each year, commencing September 15, 2025 for both series of the Notes.
Interest Deferral Right:		So long as no Event of Default has occurred and is continuing, the Issuer may elect, at its option, on any date other than an Interest Payment Date, to defer the interest payable on either or both series of the Notes on one or more occasions for up to five consecutive years (each, a “Deferral Period”). There is no limit on the number of Deferral Periods that may occur. Deferred interest will accrue at the then-applicable interest rate for such series of Notes (as reset from time to time in accordance with the terms of such series of Notes), compounding on each applicable subsequent Interest Payment Date, until paid, to the extent permitted by applicable law. No Deferral Period may extend beyond the applicable Maturity Date.
Optional Redemption:		The Issuer may redeem either series of the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of thereof: (a) on any day in the period commencing on and including the date that is 90 days prior to the applicable First Reset Date and ending on and including such First Reset Date; and (b) thereafter, on any applicable Interest Payment Date, in each case together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.
Redemption on Tax Event:		At any time on or within 90 days following the occurrence of a Tax Event, the Issuer may, at its option, redeem all (but not less than all) of either or both series of the Notes at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.
Redemption on Rating Event:		At any time on or within 90 days following the occurrence of a Rating Event, the Issuer may, at its option, redeem all (but not less than all) of either or both series of the Notes at a redemption price equal to 102% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.
CUSIP / ISIN:		2055-A Notes: 0778FPAP4 / US0778FPAP47   2055-B Notes: 0778FPAQ2 / US0778FPAQ20
Joint Book-Running Managers:		BofA Securities, Inc. BMO Capital Markets Corp. Citigroup Global Markets Inc. RBC Capital Markets, LLC
Co-Managers:		Barclays Capital Inc. Casgrain & Company Limited CIBC World Markets Corp. Desjardins Securities Inc. Mizuho Securities USA LLC

 

C-2

		National Bank of Canada Financial Inc. Scotia Capital (USA) Inc. SMBC Nikko Securities America, Inc. TD Securities (USA) LLC Wells Fargo Securities, LLC
Governing Law:		State of New York, except for the subordination provisions, which will be governed by and construed in accordance with the laws of the Province of Québec
Prospectus and Prospectus Supplement:		Prospectus dated February 6, 2025, and Preliminary Prospectus Supplement dated February 10, 2025

 

 

*Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.

***

**The Issuer expects that delivery of the Notes will be made to investors on or about February 18, 2025 which will be the third business day following the date of this pricing term sheet (such settlement being referred to as “T+3”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the business day before the date of delivery of the Notes hereunder will be required, by virtue of the fact that the Notes initially settle in T+3, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade the Notes prior to the business day before the date of delivery of the Notes hereunder should consult their advisors.

The terms “2055-A Interest Reset Date,” “2055-B Interest Reset Date,” “Interest Reset Date,” “Subsequent Fixed Rate Period,” “Five-Year U.S. Treasury Rate,” “Interest Reset Determination Date,” “Event of Default,” “Tax Event” and “Rating Event,” have the meanings ascribed to those terms in the Issuer’s Preliminary Prospectus Supplement, dated February 10, 2025.

The Issuer and the Guarantor have filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the Securities and Exchange Commission (“SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement (including the documents incorporated by reference therein) and other documents the Issuer and the Guarantor have filed with the SEC for more complete information about the Issuer, the Guarantor and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, the Guarantor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the preliminary prospectus supplement if you request it by contacting BofA Securities, Inc., toll-free at 1-800-294-1322, BMO Capital Markets Corp., toll-free at 1-888-200-0266, Citigroup Global Markets Inc., toll-free at 1-800-831-9146, and RBC Capital Markets, LLC, toll-free at 1-866-375-6829.

The distribution of the Notes in Canada may only be made on a “private placement” basis, solely to investors that are “accredited investors” and “permitted clients” under applicable Canadian securities laws, and pursuant to a separate Canadian offering memorandum. Any resale of the securities by Canadian purchasers must be made in accordance with applicable Canadian securities laws, which may vary depending on the relevant jurisdiction, and which may require resales to be made in accordance with prospectus requirements or exemptions from the prospectus requirements. These resale restrictions may under certain circumstances apply to resales of the securities outside of Canada. Canadian purchasers are advised to seek legal advice prior to any resale of the securities both within and outside of Canada. This pricing term sheet is not, and under no circumstances is to be construed as, a prospectus, an offering memorandum, an advertisement or a public offering of securities in Canada.

Any disclaimer or other notice that may appear below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.

 

C-3

EXHIBIT D

FORM OF CHIEF FINANCIAL OFFICER CERTIFICATE

TO BE DELIVERED PURSUANT TO SECTIONS 7(H) AND 7(I)

 

D-1

Exhibit 99.2

 

 

 

BELL CANADA

           Company

and

BCE INC.

           Guarantor

TO

THE BANK OF NEW YORK MELLON

           Trustee

 

 

Subordinated Indenture

Dated as of February 18, 2025

 

 

Subordinated Debt Securities

 

 

 

TABLE OF CONTENTS

 

 

 

				PAGE
PARTIES					1
RECITALS OF THE COMPANY					1
RECITALS OF THE GUARANTOR					1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION					1
SECTION 101.		Definitions			1
		Act			2
		Additional Amounts			2
		Affiliate			2
		Applicable Tax Law			2
		Authenticating Agent			2
		Beneficial Tax Owner			2
		Board of Directors			2
		Board Resolution			2
		Business Day			3
		Code			3
		Commission			3
		Company			3
		Company Request; Company Order			3
		Corporate Trust Office			3
		corporation			3
		Covenant Defeasance			3
		Debt			3
		Defaulted Interest			3
		Defeasance			3
		Depositary			4
		Event of Default			4
		Exchange Act			4
		Expiration Date			4
		Funded Debt			4
		Global Security			4
		Guarantee			4
		Guaranteed Obligations			4
		Guarantor			4
		Holder			4
		Indenture			4
		interest			4
		Interest Payment Date			4
		Investment Company Act			4
		Maturity			5

				PAGE
		Notice of Default			5
		Officer			5
		Officer’s Certificate			5
		Opinion of Counsel			5
		Original Issue Discount Security			5
		Outstanding			5
		Paying Agent			6
		Person			6
		Place of Payment			6
		Predecessor Security			6
		Proceeding			7
		Process Agent			7
		Record Date			7
		Redemption Date			7
		Redemption Price			7
		Regular Record Date			7
		Relevant Taxing Jurisdiction			7
		Responsible Officer			7
		Securities			7
		Securities Act			7
		Security Register; Security Registrar			7
		Special Record Date			7
		Stated Maturity			7
		Subsidiary			7
		Tax Act			8
		Taxes			8
		Treasury Regulations			8
		Trust Indenture Act			8
		Trustee			8
		U.S. Government Obligation			8
		Vice-President			8
SECTION 102.		Compliance Certificates and Opinions			8
SECTION 103.		Form of Documents Delivered to Trustee			9
SECTION 104.		Acts of Holders; Record Dates			9
SECTION 105.		Notices, Etc., to Trustee, Company and Guarantor			11
SECTION 106.		Notice to Holders; Waiver			12
SECTION 107.		Conflict with Trust Indenture Act			12
SECTION 108.		Effect of Headings and Table of Contents			13
SECTION 109.		Successors and Assigns			13
SECTION 110.		Separability Clause			13
SECTION 111.		Benefits of Indenture			13
SECTION 112.		Governing Law			13
SECTION 113.		Waiver of Jury Trial			13
SECTION 114.		Legal Holidays			13
ARTICLE TWO SECURITY FORMS					14
SECTION 201.		Forms Generally			14
SECTION 202.		Form of Face of Security			15

 

-ii-

				PAGE
SECTION 203.		Form of Reverse of Security			16
SECTION 204.		Form of Legend for Global Securities			21
SECTION 205.		Form of Guarantee			21
SECTION 206.		Form of Trustee’s Certificate of Authentication			23
ARTICLE THREE THE SECURITIES					23
SECTION 301.		Amount Unlimited; Issuable in Series			23
SECTION 302.		Denominations			26
SECTION 303.		Execution, Authentication, Delivery and Dating			26
SECTION 304.		Temporary Securities			28
SECTION 305.		Registration, Registration of Transfer and Exchange			29
SECTION 306.		Mutilated, Destroyed, Lost and Stolen Securities			30
SECTION 307.		Payment of Interest; Interest Rights Preserved			31
SECTION 308.		Persons Deemed Owners			32
SECTION 309.		Cancellation			33
SECTION 310.		Computation of Interest			33
SECTION 311.		CUSIP Numbers			33
SECTION 312.		Original Issue Discount			33
ARTICLE FOUR SATISFACTION AND DISCHARGE					34
SECTION 401.		Satisfaction and Discharge of Indenture			34
SECTION 402.		Application of Trust Money			35
ARTICLE FIVE REMEDIES					35
SECTION 501.		Events of Default			35
SECTION 502.		Acceleration of Maturity; Rescission and Annulment			36
SECTION 503.		Collection of Indebtedness and Suits for Enforcement by Trustee			37
SECTION 504.		Trustee May File Proofs of Claim			38
SECTION 505.		Trustee May Enforce Claims Without Possession of Securities			38
SECTION 506.		Application of Money Collected			39
SECTION 507.		Limitation on Suits			39
SECTION 508.		Unconditional Right of Holders to Receive Principal, Premium and Interest			40
SECTION 509.		Restoration of Rights and Remedies			40
SECTION 510.		Rights and Remedies Cumulative			40
SECTION 511.		Delay or Omission Not Waiver			40
SECTION 512.		Control by Holders			40
SECTION 513.		Waiver of Past Defaults			41
SECTION 514.		Undertaking for Costs			41
SECTION 515.		Waiver of Usury, Stay or Extension Laws			41
ARTICLE SIX THE TRUSTEE					42
SECTION 601.		Certain Duties and Responsibilities			42
SECTION 602.		Notice of Defaults			42
SECTION 603.		Certain Rights of Trustee			42
SECTION 604.		Not Responsible for Recitals or Issuance of Securities			44

 

-iii-

				PAGE
SECTION 605.		May Hold Securities			45
SECTION 606.		Money Held in Trust			45
SECTION 607.		Compensation and Reimbursement			45
SECTION 608.		Conflicting Interests			45
SECTION 609.		Corporate Trustee Required; Eligibility			46
SECTION 610.		Resignation and Removal; Appointment of Successor			46
SECTION 611.		Acceptance of Appointment by Successor			47
SECTION 612.		Merger, Conversion, Consolidation or Succession to Business			48
SECTION 613.		Preferential Collection of Claims Against Company and Guarantor			49
SECTION 614.		Appointment of Authenticating Agent			49
SECTION 615.		Electronic Communications			50
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR					51
SECTION 701.		Company and Guarantor to Furnish to Trustee Names and Addresses of Holders			51
SECTION 702.		Preservation of Information; Communications to Holders			52
SECTION 703.		Reports by Trustee			52
SECTION 704.		Reports by Company and Guarantor			52
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER					53
SECTION 801.		Company May Consolidate, Etc., Only on Certain Terms			53
SECTION 802.		Successor Company Substituted			53
ARTICLE NINE SUPPLEMENTAL INDENTURES					54
SECTION 901.		Supplemental Indentures Without Consent of Holders			54
SECTION 902.		Supplemental Indentures With Consent of Holders			55
SECTION 903.		Execution of Supplemental Indentures			56
SECTION 904.		Effect of Supplemental Indentures			56
SECTION 905.		Conformity with Trust Indenture Act			56
SECTION 906.		Reference in Securities to Supplemental Indentures			57
ARTICLE TEN COVENANTS					57
SECTION 1001.		Payment of Principal, Premium and Interest			57
SECTION 1002.		Maintenance of Office or Agency by Company			57
SECTION 1003.		Maintenance of Office or Agency by Guarantor			58
SECTION 1004.		Money for Securities Payments to be Held in Trust			58
SECTION 1005.		Annual Certificate of Compliance			59
SECTION 1006.		Corporate Existence			59
SECTION 1007.		Waiver of Certain Covenants			59
SECTION 1008.		Additional Amounts			60
ARTICLE ELEVEN REDEMPTION OF SECURITIES					63
SECTION 1101.		Applicability of Article			63
SECTION 1102.		Election to Redeem; Notice to Trustee			63
SECTION 1103.		Selection by Trustee of Securities to be Redeemed			63

 

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				PAGE
SECTION 1104.		Notice of Redemption			64
SECTION 1105.		Deposit of Redemption Price			65
SECTION 1106.		Securities Payable on Redemption Date			65
SECTION 1107.		Securities Redeemed in Part			65
SECTION 1108.		Redemption for Changes in Withholding Taxes			65
SECTION 1109.		Purchase of Securities			66
ARTICLE TWELVE SINKING FUNDS					67
SECTION 1201.		Applicability of Article			67
SECTION 1202.		Satisfaction of Sinking Fund Payments with Securities			67
SECTION 1203.		Redemption of Securities for Sinking Fund			67
ARTICLE THIRTEEN GUARANTEES					68
SECTION 1301.		Guarantee			68
SECTION 1302.		Guarantee Unconditional			68
SECTION 1303.		Subrogation			69
SECTION 1304.		Execution and Delivery of Guarantees			69
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE					70
SECTION 1401.		Company’s Option to Effect Defeasance or Covenant Defeasance			70
SECTION 1402.		Defeasance and Discharge			70
SECTION 1403.		Covenant Defeasance			71
SECTION 1404.		Conditions to Defeasance or Covenant Defeasance.			71
SECTION 1405.		Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions			73
SECTION 1406.		Reinstatement			74
ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS					74
SECTION 1501.		Consent to Jurisdiction and Service of Process			74
SECTION 1502.		Indenture and Securities Solely Corporate Obligations			75
SECTION 1503.		Execution in Counterparts.			76
SECTION 1504.		Foreign Account Tax Compliance Act (FATCA)			76

 

-v-

..............................................................

Certain Sections of this Indenture relating to Sections 310 through 318,

inclusive, of the Trust Indenture Act of 1939:

 

Trust Indenture  Act Section		Indenture Section
§ 310(a)(1)		609
(a)(2)		609
(a)(3)		Not Applicable
(a)(4)		Not Applicable
(b)		608
		610
§ 311(a)		613
(b)		613
§ 312(a)		701
		702
(b)		702
(c)		702
§ 313(a)		703
(b)		703
(c)		703
(d)		703
§ 314(a)		704
(a)(4)		101
		1005
(b)		Not Applicable
(c)(1)		102
(c)(2)		102
(c)(3)		Not Applicable
(d)		Not Applicable
(e)		102
§ 315(a)		601
(b)		602
(c)		601
(d)		601
(e)		514
§ 316(a)		101
(a)(1)(A)		502
		512
(a)(1)(B)		513
(a)(2)		Not Applicable
(b)		508
(c)		104
§ 317(a)(1)		503
(a)(2)		504
(b)		1004
§ 318(a)		107

 

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

SUBORDINATED INDENTURE, dated as of February 18, 2025 (this “Indenture”), among BELL CANADA, a corporation incorporated under the laws of Canada (the “Company”), having its principal executive office at 1, carrefour Alexander-Graham-Bell, Building A, 8th Floor, Verdun, Québec, Canada H3E 3B3, BCE INC., a corporation incorporated under the laws of Canada (the “Guarantor”), having its principal executive office at 1, carrefour Alexander-Graham-Bell, Building A, 8th Floor, Verdun, Québec, Canada H3E 3B3, and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee (herein called the “Trustee”), having its Corporate Trust Office at 240 Greenwich Street, New York, NY 10286.

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

RECITALS OF THE GUARANTOR

The Guarantor desires to make the Guarantees provided for herein.

All things necessary to make this Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

SECTION 101.   Definitions.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1)  the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(2)  all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3)  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in Canada, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in Canada at the date of such computation;

(4)  unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;

(5)  the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

(6)  all references to “dollars” and “$” shall mean U.S. dollars unless otherwise indicated.

“Act”, when used with respect to any Holder, has the meaning specified in Section 104.

“Additional Amounts” has the meaning specified in Section 1008.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Applicable Tax Law” has the meaning specified in Section 1504.

“Applicable Procedures” of a Depositary means, with respect to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.

“Beneficial Tax Owner” means, with respect to any applicable withholding Tax, the Person in respect of which such withholding tax is imposed.

“Board of Directors”, when used with reference to the Company or the Guarantor, means either the board of directors, or any duly authorized committee of such board authorized to act for it hereunder, of the Company or of the Guarantor, as the case may be.

“Board Resolution”, when used with reference to the Company or the Guarantor, means a copy of a resolution certified by the secretary or an assistant secretary of the Company or the Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

-2-

“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment, the City of Montréal, the City of Toronto or the City of New York, New York are authorized or obligated by law or executive order to close.

“Code” means the Internal Revenue Code of 1986 and any statute successor thereto, in each case as amended from time to time.

“Commission” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

“Company Request” or “Company Order” means a written request or order signed in the name of the Company or of the Guarantor, in the case of the Company, by an Officer of the Company, or, in the case of the Guarantor, by an Officer of the Guarantor.

“Corporate Trust Office” means the principal corporate trust office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be administered, and which office at the date of the execution of this instrument is located at 240 Greenwich Street, Floor 7E, New York, New York 10286, Attention: Global Trust Services – Global Finance Americas, or such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Company)

“corporation” means a corporation, association, company, joint-stock company or business trust.

“Covenant Defeasance” has the meaning specified in Section 1403.

“Debt” means all indebtedness issued, assumed or guaranteed for borrowed money or for the deferred purchase price of property.

“Defaulted Interest” has the meaning specified in Section 307.

“Defeasance” has the meaning specified in Section 1402.

 

-3-

“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.

“Event of Default” has the meaning specified in Section 501.

“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

“Expiration Date” has the meaning specified in Section 104.

“Funded Debt” means all Debt maturing by the terms thereof on, or extendible at the option of the Company to, a date more than one year after the date of determination thereof.

“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).

“Guarantee” means any guarantee of the Guarantor endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the guarantee set forth in Section 1301.

“Guaranteed Obligations” has the meaning specified in Section 1301.

“Guarantor” means the Person named as the “Guarantor” in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor corporation.

“Holder” means a Person in whose name a Security is registered in the Security Register.

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.

“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“Investment Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

-4-

“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

“Notice of Default” means a written notice of the kind specified in Section 501(4).

“Officer” means, unless otherwise provided for in this Indenture, the chair of the Board of Directors, the president, a Vice-President, the treasurer, the secretary, any assistant treasurer or an assistant secretary and, whenever duly empowered, any other officer or employee. The Officer signing an Officer’s Certificate given by the Company or the Guarantor pursuant to Section 1005 shall be the principal executive, financial or accounting officer of the Company or the Guarantor, as the case may be.

“Officer’s Certificate” means a certificate signed by an Officer.

“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company or the Guarantor, and who shall be acceptable to the Trustee.

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

(1)  Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(2)  Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor (if the Company or the Guarantor shall act as its own Paying Agent) for the Holders of such Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

(3)  Securities as to which Defeasance has been effected pursuant to Section 1402;

(4)  Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and (5)  Securities that have been partially redeemed, in which case only the unredeemed portion of the Securities shall be deemed to be Outstanding;

 

-5-

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more non-U.S. dollar currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor.

“Paying Agent” means any Person (which may be the Company, the Guarantor, the Trustee or the Security Registrar) authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company. Initially, the Trustee shall be the Paying Agent.

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same Debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same Debt as the mutilated, destroyed, lost or stolen Security.

 

-6-

“Proceeding” has the meaning specified in Section 501(5).

“Process Agent” has the meaning specified in Section 1501(3).

“Record Date” means any Regular Record Date or Special Record Date.

“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.

“Relevant Taxing Jurisdiction” has the meaning specified in Section 1008.

“Responsible Officer”, when used with respect to the Trustee, means any officer within the corporate trust administration department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers who shall have direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.

“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

“Subsidiary” means any corporation the majority of the shares of the share capital of which at the time outstanding, having under ordinary circumstances (not dependent upon the happening of a contingency) voting power to elect a majority of directors of such corporation, is owned directly or indirectly by the Company or the Guarantor, as the case may be, or by one or more of its Subsidiaries or by the Company or the Guarantor, as the case may be, in conjunction with one or more of its Subsidiaries; “Tax Act” means the Income Tax Act (Canada), any statute successor thereto, and the regulations made thereunder, in each case as amended from time to time.

 

-7-

“Taxes” has the meaning specified in Section 1008.

“Treasury Regulations” means the United States Department of Treasury regulations, including temporary regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

“U.S. Government Obligation” has the meaning specified in Section 1404(1).

“Vice-President”, when used with respect to the Company, the Guarantor or the Trustee, means any vice-president, whether or not designated by a number or a word or words added before or after the title “vice-president”.

SECTION 102.  Compliance Certificates and Opinions.

Upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1005) shall include:

(1)  a statement that the individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2)  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

-8-

(3)  a statement that, in the opinion of such individual, such individual has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(4) a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.

SECTION 103.  Form of Documents Delivered to Trustee.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an Officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such counsel’s certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

SECTION 104.   Acts of Holders; Record Dates.

Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantor. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.

 

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Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee, the Company and the Guarantor, if made in the manner provided in this Section.

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than such person’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such person’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

The ownership of Securities shall be proved by the Security Register.

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.

The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date, provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series.

 

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If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date, provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company and the Guarantor in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

With respect to any record date set pursuant to this Section, the party hereto which sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day, provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

SECTION 105.   Notices, Etc., to Trustee, Company and Guarantor.

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

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(1)  the Trustee by any Holder or by the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or (2)  the Company or the Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company or the Guarantor, as the case may be, addressed to it at the address of its principal office specified in the first paragraph of this instrument, to the attention of its secretary, or at any other address previously furnished in writing to the Trustee by the Company or the Guarantor.

The Trustee promptly shall notify Holders, or cause Holders to be notified, of any notice of address furnished in writing to the Trustee by the Company or the Guarantor as described in Clause (2) of this Section.

SECTION 106.   Notice to Holders; Waiver.

Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

Notwithstanding anything in the Indenture to the contrary, where this Indenture provides for notice of any event to a Holder of a Global Security, such notice will be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures not later than the latest date (if any) and not earlier than the earliest date (if any) prescribed for the giving of such notice

SECTION 107.   Conflict with Trust Indenture Act.

If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

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SECTION 108.   Effect of Headings and Table of Contents.

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

SECTION 109.   Successors and Assigns.

All covenants and agreements in this Indenture by the Company or the Guarantor shall bind its successors and assigns, whether so expressed or not.

SECTION 110.   Separability Clause.

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

SECTION 111.   Benefits of Indenture.

Nothing in this Indenture or in the Securities or in the Guarantees, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the Holders, and the holders of any obligations of the Company or the Guarantor to which the Securities of such series are subordinated pursuant to Section 301(20), any benefit or any legal or equitable right, remedy or claim under this Indenture.

SECTION 112.   Governing Law.

This Indenture, the Securities and the Guarantees shall be governed by and construed in accordance with the laws of the State of New York. The Company and the Guarantor hereby irrevocably and unconditionally submit to the nonexclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, City and State of New York.

SECTION 113.   Waiver of Jury Trial.

EACH OF THE PARTIES HERETO AND THE HOLDERS OF THE SECURITIES ISSUED HEREUNDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

SECTION 114.   Legal Holidays.

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided, however, that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to the date of such payment.

 

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ARTICLE TWO

SECURITY FORMS

SECTION 201.   Forms Generally.

The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution, in one or more indentures supplemental hereto or in an Officer’s Certificate delivered pursuant to Section 301, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities. If all the Securities of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Security of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Security of such series.

The Guarantees to be endorsed on the Securities of each series shall be in substantially the form set forth in Section 205, or in such other form as shall be established by or pursuant to a Board Resolution of the Guarantor or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the person duly authorized thereto executing such Guarantees, all as evidenced by such execution. If the form of Guarantees to be endorsed on the Securities of any series is established by action taken pursuant to a Board Resolution of the Guarantor, a copy of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Guarantor and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.

 

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The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.

SECTION 202.   Form of Face of Security.

[Insert any legend required by Section 204.]

[Insert any legend required by the Internal Revenue Code and the Income Tax Act (Canada) and the regulations thereunder or applicable securities laws.]

BELL CANADA

[Insert title of Securities]

 

No. .........		[$] ........

CUSIP No. ........

Bell Canada, a corporation duly organized and existing under the laws of Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ..............................................., or registered assigns, the principal sum of ...................................... [Dollars] on ........................................................

[if the Security is to bear interest prior to Maturity, insert — , and to pay interest thereon from ............. or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on ............ and ............ in each year, commencing ........., at the rate of ....% per annum, until the principal hereof is paid or made available for payment [if applicable, insert — , provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of ...% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the ....... or ....... (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may, at the Company’s election, either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner deemed appropriate by the Trustee not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].

 

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[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of ....% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of ......% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]

Payment of the principal of (and premium, if any) and [if applicable, insert — any such] interest on this Security will be made at the office or agency of the Company maintained for that purpose in ............, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if applicable, insert — ; provided, however, that at the option of the Company payment of interest may be made by [electronic fund transfer or] check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature (or, solely in the case of a Global Security, facsimile or electronic signature), this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

Unless otherwise specifically stated, all dollar amounts in this Security are expressed in U.S. dollars.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated:

 

SECTION 203.   Form of Reverse of Security.

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of February [•], 20[•] (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), among the Company, BCE Inc.,

 

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as Guarantor (herein called the “Guarantor”, which term includes any successor Person under the Indenture) and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert —, limited in aggregate principal amount to [$]...........].

[If applicable, insert — The Securities of this series are subject to redemption upon not less than 10 days’ notice, [if applicable, insert — (1) on ........... in any year commencing with the year ...... and ending with the year ...... through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after .........., 20..], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert — on or before ..............., ...%, and if redeemed] during the 12-month period beginning ............. of the years indicated,

 

Year

Redemption Price

Year

Redemption Price

and thereafter at a Redemption Price equal to .....% of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

[If applicable, insert — The Securities of this series are subject to redemption upon not less than 10 days’ notice, (1) on ............ in any year commencing with the year .... and ending with the year .... through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after ............], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning ............

 

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Year		Redemption Price for Redemption Through Operation of the Sinking Fund		Redemption Price for Redemption Otherwise Than Through Operation of the Sinking Fund

of the years indicated, and thereafter at a Redemption Price equal to .....% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

[If applicable, insert — The sinking fund for this series provides for the redemption on ............ in each year beginning with the year ....... and ending with the year ...... of [if applicable, insert — not less than [$].......... (“mandatory sinking fund”) and not more than] [$]......... aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the inverse order in which they become due].]

[Insert description of any right of the Company to redeem the Securities of this series in whole or in part.]

[If applicable, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

[Insert description regarding subordination of the Security.]

[If applicable, insert — The Securities will also be subject to redemption as a whole, but not in part, at the option of the Company at any time, on not less than 10 nor more than 60 days’ prior written notice, at 100% of the principal amount thereof, together with accrued and unpaid interest thereon up to but excluding the Redemption Date and all Additional Amounts then due or which will become due upon redemption, in the event the Company or the Guarantor is, or on the next relevant payment date would be, obliged to pay any Additional Amounts with respect to the Securities or the Guarantees as a result of a change in, or amendment to, the laws (including any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction or as a result of any change in or amendment made to any official or administrative policy or position or interpretation of any applicable taxing authority within a Relevant Taxing Jurisdiction, or judicial decision rendered by a court of competent jurisdiction, which change or amendment is announced or becomes effective on or after the initial issue date of the Securities.]

 

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[If applicable, insert — The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default with respect to this Security] [, in each case] upon compliance with certain conditions set forth in the Indenture.]

[If applicable, insert provisions with respect to the option of Holders to require purchase or repayment of Securities of this series by the Company at the option of the Holder and the issuance of Securities in lieu of Securities purchased or repaid by the Company at the option of the Holder.]

[If the Security is not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]

[If the Security is an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [— insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company or the Guarantor, or both, with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

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As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and the Trustee shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities of this series are issuable only in registered form without coupons in denominations of [$]....... and [any integral multiple] [integral multiples of [$]…….] thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

All terms used in this Security which are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.

 

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SECTION 204.   Form of Legend for Global Securities.

Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

SECTION 205.   Form of Guarantee.

Guarantees to be endorsed on the Securities shall, subject to Section 201, be in substantially the form set forth below; words enclosed in brackets shall be inserted if applicable:

For value received, the Guarantor (which term includes any successor Person under the Indenture), hereby fully and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee referred to in such Indenture due and prompt payment of the principal of (and premium, if any) and interest on such Security [and the due and prompt payment of the sinking fund payments provided for therein,] (the “Guaranteed Obligations”) when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein (the “Guarantee”). In case of the failure of the Company (which term includes any successor Person under the Indenture) punctually to make any such payment of Guaranteed Obligations, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof.

 

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The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of amalgamation, merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal of (and premium, if any) and interest on such Security. This Guarantee shall constitute a guarantee of payment and not of collection.

Subject to the provisions with respect to the subordination of this Guarantee to other obligations of the Guarantor as described below, this Guarantee shall not be impaired by any modification, supplement, extension or amendment of any contract or agreement to which the parties thereto may hereafter agree, nor by any modification, release or other alteration of any of the Guaranteed Obligations or of any security therefore to which the parties thereto may hereafter agree, nor by any agreements or arrangements whatever with the Company or anyone else. The liability of the Guarantor hereunder is direct and unconditional and may be enforced without requiring the Trustee first to resort to any other right or security. The obligation of the Guarantor hereunder shall be irrevocable and unconditional irrespective of, shall not be affected or limited by, and shall not be subject to any defense, set-off, counterclaim or termination by reason of: (i) the legality, genuineness, validity, regularity or enforceability of this Guarantee or the liabilities of the Company guaranteed hereby; (ii) any provision of applicable law or regulation prohibiting the payment by the Company of the Guaranteed Obligations; or (iii) any other fact or circumstance which might otherwise constitute a defense to a guarantee, including without limitation, any failure to perfect or continue the perfection of any security interest securing all or any part of the Guaranteed Obligations, the invalidity or unenforceability of any of the Guaranteed Obligations, or the release of any party guaranteeing all or a portion of the Guaranteed Obligations. The Guarantor confirms that in executing and delivering this Guarantee it has not relied on any representation, warranty or other statement or agreement by the Trustee. All recourses of the Trustee hereunder shall be exercised in accordance with its powers under the Indenture.

The obligations of the Guarantor to which this Guarantee is subordinated as described below shall not be deemed to have been paid in full unless the holders thereof shall have received cash (or securities or other property satisfactory to such holders) in full payment of such obligations of the Guarantor then outstanding. Upon the payment in full of all such obligations of the Guarantor, the Guarantor shall be subrogated to all rights of the Holder of such Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any) and interest on all Securities of the same series issued under such Indenture shall have been paid in full.

[Insert description regarding subordination of the Guarantee.]

All terms used in this Guarantee which are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.

 

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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.

 

SECTION 206.   Form of Trustee’s Certificate of Authentication.

Subject to Section 614, the Trustee’s certificates of authentication shall be in substantially the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

Dated: ...............................

 

ARTICLE THREE

THE SECURITIES

SECTION 301.   Amount Unlimited; Issuable in Series.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established by or pursuant to a Board Resolution of the Company and by or pursuant to a Board Resolution of the Guarantor, and, subject to Section 303, set forth, or determined in the manner provided, in an Officer’s Certificate of the Company, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,

(1)  the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);

(2)  any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);

 

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(3)  the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

(4)  the date or dates on which the principal of any Securities of the series is payable;

(5)  the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;

(6)  whether and under what circumstances, if any, the Company or the Guarantor will pay Additional Amounts as contemplated by Section 1008 on the Securities of the series to any Holder in respect of any tax, duty, assessment or other governmental charge of whatever nature and, if so, whether and under what circumstances, if any, the Company will have the option to redeem such Securities rather than pay such Additional Amounts as contemplated by Section 1108;

(7)  the place or places where the principal of and any premium and interest on any Securities of the series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, any restrictions that may be applicable to any such transfer or exchange in addition to or in lieu of those set forth herein, and the place or places where notices and demands to or upon the Company or the Guarantor in respect of the Securities of such series may be made;

(8)  the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;

(9)  the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

(10)  if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;

(11)  if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined; (12)  if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;

 

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(13)  if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

(14)  if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;

(15)  if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

(16)  if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1402 or 1403 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced and any other provisions governing exchanges or transfers of any such Global Security;

(17)  if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;

(18)  any addition to, deletion from or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502; (19)  any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series;

 

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(20)  the terms of the subordination of the Securities of the series to other obligations of the Company (including Securities of other series, as applicable), the terms of the subordination of the Guarantee with respect to such Securities to the other obligations of the Guarantor, and any related provisions; and

(21)  any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(6)).

All Securities of any one series shall be substantially identical except as to denomination and number and except as may otherwise be provided in or pursuant to such Board Resolutions and set forth (or determined in the manner provided in) in such Officer’s Certificates or in any such indenture supplemental hereto.

If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company or the Guarantor, a copy of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company or of the Guarantor, as the case may be, and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.

SECTION 302.   Denominations.

The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.

SECTION 303.   Execution, Authentication, Delivery and Dating.

The Securities shall be executed on behalf of the Company by any two Officers holding one or more of the following offices: chair of the Board of Directors, president, Vice-President, treasurer or secretary. Any such signature may be manual or printed or otherwise mechanically reproduced and may, but need not be, under or accompanied by the corporate seal of the Company or a reproduction thereof.

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. The Guarantee, by the endorsement of its text on any Security authenticated and delivered by the Trustee, shall bind the Guarantor with respect to such Securities notwithstanding that the individuals who were at the time of the execution of the Guarantee proper Officers of the Guarantor and whose manual or facsimile signatures are borne thereon have ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Security.

 

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At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company (having endorsed thereon the text of the Guarantees) to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities.

If the form or terms of the Securities of the series, or the Guarantees, the text of which is endorsed thereon, have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating:

(1)  if the form of such Securities or Guarantees has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;

(2) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture;

(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and

(4) that such Guarantees, when the Securities upon which they shall have been endorsed shall have been authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Notwithstanding the provisions of Section 301 and of the two preceding paragraphs, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraphs at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

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Each Security shall be dated the date of its authentication.

No Security or Guarantee shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein, executed by the Trustee by manual signature (or, solely in the case of a Global Security, facsimile or electronic signature), and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security or the Guarantee endorsed thereon shall have been authenticated and delivered hereunder but never issued and sold by the Company or the Guarantor, as the case may be, and the Company and the Guarantor shall deliver such Security and Guarantee to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security or Guarantee shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

SECTION 304.  Temporary Securities.

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities having endorsed thereon the text of the Guarantee which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their execution of such Securities.

If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay.

After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, having endorsed thereon a Guarantee duly executed by the Guarantor.

Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.

 

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SECTION 305.  Registration, Registration of Transfer and Exchange.

The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.

Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon a Guarantee duly executed by the Guarantor.

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon a Guarantee duly executed by the Guarantor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company and the Guarantor, evidencing the same Debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or such Holder’s attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.

If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

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The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:

(1)  Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.

(2)  Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for registered Securities, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless(A) such Depositary (i) has notified the Company that it is unwilling or unable or no longer permitted under applicable law to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security, (C) the Company and the Guarantor each so direct the Trustee by Company Order or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.

(3)  Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

SECTION 306.   Mutilated, Destroyed, Lost and Stolen Securities.

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount having endorsed thereon a Guarantee duly executed by the Guarantor, and bearing a number not contemporaneously outstanding.

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount, having endorsed thereon a Guarantee duly executed by the Guarantor and bearing a number not contemporaneously outstanding.

 

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In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

SECTION 307.   Payment of Interest; Interest Rights Preserved.

Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:

(1)  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.

 

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Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so delivered, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).

(2)  The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.

Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of, or in exchange for, or in lieu of, any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

SECTION 308.   Persons Deemed Owners.

Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee nor any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Trustee or any agent of the Company or any Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and holders of beneficial interests in any Global Security, the operation of customary practices and adherence to the Applicable Procedures governing the exercise of the rights of the Depositary as a Holder of such Global Security.

 

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SECTION 309.  Cancellation.

All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the customary procedures of the Trustee.

SECTION 310.  Computation of Interest.

Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

SECTION 311.  CUSIP Numbers.

The Company in issuing any series of the Securities may use CUSIP numbers, if then generally in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption with respect to such series, provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities of that series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities of that series, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change of such CUSIP numbers.

SECTION 312.  Original Issue Discount.

If any of the Securities is an Original Issue Discount Security, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on such Outstanding Original Issue Discount Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Code.

 

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ARTICLE FOUR

SATISFACTION AND DISCHARGE

SECTION 401.  Satisfaction and Discharge of Indenture.

This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and any right to receive Additional Amounts, as provided in Section 1008), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

(1) either

(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor or discharged from such trust, as provided in Section 1004) have been delivered to the Trustee for cancellation; or

(B) all such Securities not theretofore delivered to the Trustee for cancellation

(i) have become due and payable, or

(ii) will become due and payable at their Stated Maturity within one year, or

(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient (without reinvestment) to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

(2) the Company or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company; and

(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

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Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantor to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1004 shall survive.

SECTION 402.  Application of Trust Money.

Subject to the provisions of the last paragraph of Section 1004, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or the Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.

ARTICLE FIVE

REMEDIES

SECTION 501. Events of Default.

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be occasioned by provisions with respect to the subordination of the Securities of such series as contemplated by Section 301(20) or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(1) default in the payment of the principal of or premium (if any) on any Security at its Maturity or otherwise and any such default shall have continued for a period of five days; or

(2) default in the payment of any installment of interest upon any Security at its Maturity and any such default shall have continued for a period of 90 days; or

(3) default in the payment of any purchase or sinking fund, amortization fund or analogous fund installment on any Security as and when the same shall become due and payable, and such default shall have continued for a period of 30 days; or

(4) default by the Company in the performance or observance of any other of the covenants, agreements or conditions on its part in this Indenture or any indenture supplemental hereto or in any Security and such default shall have continued for a period of 90 days after written notice to the Company and the Guarantor by the Trustee specifying such default and requiring it to be remedied and stating that such a notice is a “Notice of Default” hereunder or after written notice to the Company, the Guarantor and the Trustee by the Holders of not less than 25% in principal amount of the Outstanding Securities (excluding Securities of any series not entitled to the benefits of such covenant, agreement or condition); or

 

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(5) the Company shall have made an assignment for the general benefit of creditors or shall be adjudicated insolvent or bankrupt, or shall have petitioned or shall have applied to any court having jurisdiction for the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall have commenced any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency reorganization, arrangement, or readjustment of Debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this Clause called “Proceeding”); or if there shall have been commenced against the Company any Proceeding and an order approving such Proceeding shall have been rendered, or such Proceeding shall have remained undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company shall have been appointed; or the Company shall have indicated consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company, provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another corporation or the transfer of its assets as a whole, or substantially as a whole, to such other corporation as provided in Section 801 shall not make the rights and remedies herein enforceable under this Clause if such last-mentioned corporation shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 801; or

(6) any other Event of Default provided with respect to Securities of that series.

SECTION 502.  Acceleration of Maturity; Rescission and Annulment.

If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee may, in its discretion and shall, if so requested by the Holders of not less than 25% in principal amount of the Outstanding Securities of that series, declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company and the Guarantor, and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences (provided that if the Event of Default in respect of which acceleration has been declared pursuant to this Section 502 relates to a covenant applicable to one or more particular series of Securities, the declaration of acceleration may be rescinded and annulled by the Holders of a majority in principal amount of the Outstanding Securities of such series) if

 

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(1) the Company has paid or deposited with the Trustee a sum sufficient to pay

(A) all overdue interest, if any, on all Securities of that series,

(B) the principal of (and premium, if any, on) any Securities of that series that have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;

and

(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

No such rescission shall affect any subsequent default or impair any right consequent thereon.

SECTION 503.  Collection of Indebtedness and Suits for Enforcement by Trustee.

The Company covenants that if

(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 90 days, or

(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of five days,

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

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If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion, and shall, upon the request in writing of the Holders of not less than 25% in principal amount of the Outstanding Securities of such series and upon being indemnified to its reasonable satisfaction against all costs, expenses and liabilities to be incurred, proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

SECTION 504.  Trustee May File Proofs of Claim.

In case of any judicial proceeding relative to the Company, the Guarantor (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

SECTION 505.  Trustee May Enforce Claims Without Possession of Securities.

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

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SECTION 506.  Application of Money Collected.

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST: To the payment of all amounts due the Trustee under Section 607; and

SECOND: Subject to provisions with respect to the subordination of such Securities to other obligations of the Company as contemplated by Section 301(20), to the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively.

SECTION 507.  Limitation on Suits.

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;

(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;

it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders, subject to provisions with respect to the subordination of such Securities or the Guarantee to other obligations of the Company or the Guarantor as contemplated by 301(20).

 

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SECTION 508.  Unconditional Right of Holders to Receive Principal, Premium and Interest.

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

SECTION 509.  Restoration of Rights and Remedies.

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

SECTION 510.  Rights and Remedies Cumulative.

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

SECTION 511.  Delay or Omission Not Waiver.

No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

SECTION 512.  Control by Holders.

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee (and the Trustee may act at the direction of the requisite Holders without liability) or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that (1) such direction shall not be in conflict with any rule of law or with this Indenture, and

 

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(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

SECTION 513.  Waiver of Past Defaults.

The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

(1) in the payment of the principal of or any premium or interest on any Security of such series, or

(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

SECTION 514.  Undertaking for Costs.

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act, provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee, the Company or the Guarantor.

SECTION 515.  Waiver of Usury, Stay or Extension Laws.

The Company and the Guarantor each covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and the Guarantor each (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

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ARTICLE SIX

THE TRUSTEE

SECTION 601.  Certain Duties and Responsibilities.

The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and the Commission’s rules thereunder, and the Indenture.

Except during the continuance of an Event of Default, the duties of the Trustee shall be determined solely by the provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture, and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee.

If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

SECTION 602.  Notice of Defaults.

If a default occurs hereunder with respect to Securities of any series and a Responsible Officer of the Trustee shall have received written notice of such default, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

SECTION 603.  Certain Rights of Trustee.

Subject to the provisions of Section 601:

(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Company or the Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors of the Company or the Guarantor shall be sufficiently evidenced by a Board Resolution;

 

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(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and the Guarantor, personally or by agent or attorney; provided, however, that the Trustee shall cause its agents and attorneys to hold in confidence all such information except to the extent disclosure may be required by law and except to the extent that the Trustee, in its sole judgment, may determine that such disclosure is required pursuant to its obligations hereunder;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(8) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and by each agent, custodian or other Person employed by the Trustee to act hereunder;

(9) in no event shall the Trustee be responsible or liable for any punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; (10) the Trustee may request that the Company and the Guarantor deliver an Officer’s Certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded;

 

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(11) the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions (it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances);

(12) to help fight the funding of terrorism and money laundering activities, the Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Trustee. The Trustee may ask for the name, address, tax identification number and other information that shall allow the Trustee to identify the individual or entity who is establishing the relationship or opening the account. The Trustee may also ask for formation documents such as articles of incorporation, an offering memorandum, or other identifying documents to be provided. Each party to this Indenture agrees that it shall provide the Trustee with such information as the Trustee may reasonably request of such party;

(13) the Trustee shall not be liable for errors in judgment made in good faith unless negligent in ascertaining the pertinent facts and may act at the direction of the requisite Holders under the relevant provisions of this Indenture without liability; and

(14) delivery of reports, information or other information to the Trustee does not constitute actual or constructive knowledge or notice of the information contained therein.

SECTION 604.  Not Responsible for Recitals or Issuance of Securities.

The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company or the Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

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SECTION 605.  May Hold Securities.

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or the Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company and the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

SECTION 606.  Money Held in Trust.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company or the Guarantor, as the case may be.

SECTION 607.  Compensation and Reimbursement.

The Company agrees:

(1) to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;

(3) to indemnify the Trustee (which for purposes of this Clause shall include its officers, directors, employees and agents) for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder; and

(4) that the obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and the removal and resignation of the Trustee.

SECTION 608.  Conflicting Interests.

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

 

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To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.

SECTION 609.  Corporate Trustee Required; Eligibility.

There shall at all times be a Trustee hereunder with respect to the Securities of each series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in the Borough of Manhattan, The City of New York. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

SECTION 610.  Resignation and Removal; Appointment of Successor.

No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.

The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee with respect to the Securities of such series.

In accordance with the requirements of Section 315(e) of the Trust Indenture Act, the Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company and the Guarantor.

If at any time:

(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Company, the Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or

(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company, the Guarantor or by any such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

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then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the Guarantor, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

SECTION 611.  Acceptance of Appointment by Successor.

In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company, the Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company, the Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

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In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company, the Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

Upon request of any such successor Trustee, the Company and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

SECTION 612.  Merger, Conversion, Consolidation or Succession to Business.

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.

 

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SECTION 613.  Preferential Collection of Claims Against Company and Guarantor.

If and when the Trustee shall be or become a creditor of the Company, the Guarantor or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company, the Guarantor or any such other obligor.

SECTION 614.  Appointment of Authenticating Agent.

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent (including the authenticating agency contemplated by this Indenture), shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section and reasonably acceptable to the Company, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company and the Guarantor.

 

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Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and the Guarantor and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Company agrees to pay to each Authenticating Agent such compensation as shall be agreed to in writing between the Company and the Trustee for all services rendered by it hereunder. If an appointment of an Authenticating Agent or Agents with respect to one or more Securities is made pursuant to this Section, the Company and the Trustee agree that the compensation paid to the Trustee shall be decreased to reflect any change in the services delivered by the Trustee as a result of such appointment, pursuant to a written agreement to be entered into by the Company and the Trustee.

If an appointment of an Authenticating Agent with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

THE BANK OF NEW YORK MELLON,

As Trustee

By.............……………......................,

As Authenticating Agent

By..............………….........................

Authorized Officer

SECTION 615.  Electronic Communications.

The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling.

 

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The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and, if the Trustee believes in good faith that such Instructions are genuine and from the person purporting to be the sender of such Instructions, that the Trustee shall have the right to conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction, unless such losses, costs or expenses were caused by the Trustee’s gross negligence, bad faith, fraud or willful misconduct. The Company agrees: (i) subject to the immediately preceding sentence, to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any material compromise or unauthorized use of the security procedures to be followed in connection with its transmission of Instructions.

“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

ARTICLE SEVEN

HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR

SECTION 701.  Company and Guarantor to Furnish to Trustee Names and Addresses of Holders.

The Company and the Guarantor will furnish or cause to be furnished to the Trustee:

(1) semi-annually either (i) not later than January 15 and July 15 in each year in the case of any series of Securities consisting solely of Original Issue Discount Securities, which by their terms do not bear interest to Maturity, or (ii) not more than 15 days after each Regular Record Date in the case of Securities of any other series, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding January 1 or July 1 or as of such Regular Record Date, as the case may be, and (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

 

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excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.

SECTION 702.  Preservation of Information; Communications to Holders.

The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that none of the Company, the Guarantor, the Trustee or any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.

SECTION 703.  Reports by Trustee.

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.

SECTION 704.  Reports by Company and Guarantor.

The Company and the Guarantor shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act, provided that, any such documents filed by the Company or the Guarantor with the Commission pursuant to Section 13 or 15(d) of the Exchange Act and publicly available on the Commission’s Electronic Data Gathering, Access and Retrieval system (or any successor system) shall be deemed filed with the Trustee and transmitted to Holders by the Company or the Guarantor, as the case may be.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantor’s compliance with any of their respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates of the Company or the Guarantor, as the case may be).

 

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ARTICLE EIGHT

CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER

SECTION 801.  Company May Consolidate, Etc., Only on Certain Terms.

The Company shall not consolidate with, amalgamate with or merge into any other corporation or convey or transfer its properties and assets as a whole or substantially as a whole to any Person, unless:

(1) the corporation formed by such consolidation or amalgamation or into which the Company is merged or the Person that acquires by operation of law or by conveyance or transfer the properties and assets of the Company as a whole or substantially as a whole shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of Canada or any province or territory thereof, and shall (except in any case where such assumption is deemed to have occurred by the sole operation of law, and the Opinion of Counsel referred to in Clause (3) below states that such assumption is deemed to have occurred by the sole operation of law), expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing; and

(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, amalgamation, conveyance or transfer and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

SECTION 802.  Successor Company Substituted.

Upon any consolidation or amalgamation of the Company with, or merger of the Company into, any other corporation or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or amalgamation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter; provided, however, that no such conveyance or transfer shall have the effect of releasing the Person named as the “Company” in the first paragraph of this Indenture or any successor Person which shall theretofore have become such in the manner prescribed in this Article from its liability as obligor on any of the Securities unless such conveyance or transfer is followed by the complete liquidation of the Company.

 

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ARTICLE NINE

SUPPLEMENTAL INDENTURES

SECTION 901. Supplemental Indentures Without Consent of Holders.

Without the consent of any Holders, the Company (when authorized by or pursuant to a Board Resolution), the Guarantor (when authorized by or pursuant to a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(1) to evidence the succession of another Person to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor herein and in the Securities or the Guarantees; or

(2) to add to the covenants of the Company or of the Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor; or

(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

(4) to add any additional present, future or contingent payment obligation of the Guarantor under any Guarantee for the benefit of the Holders of all or any series of Securities (and if such additional payment obligations are to be for the benefit of less than all series of Securities, stating that such additional payment obligations are expressly being included solely for the benefit of such series); or

(5) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or

(6) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or

 

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(7) to establish the form or terms of Securities of any series or the form of Guarantees as permitted by Sections 201 and 301;

(8) to add or amend provisions for purposes of effecting the subordination of Securities of any series, or the Guarantee of Securities of any series, subordinated to other obligations of the Company or the Guarantor as contemplated by Section 301(20); or

(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or

(10) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause shall not adversely affect the interests of the Holders of Securities of any series in any material respect.

SECTION 902.  Supplemental Indentures With Consent of Holders.

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Guarantor and the Trustee, the Company (when authorized by or pursuant to a Board Resolution), the Guarantor (when authorized by or pursuant to a Board Resolution) and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant to Section 1008 (except as contemplated by Section 801(1) and permitted by Section 901(1)) or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify provisions with respect to the subordination of such Securities, or the Guarantee of such Securities, in a manner adverse to the Holders, or

 

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(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

(3) modify any of the provisions of this Section, Section 513 or Section 1007, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this Clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 1007, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8).

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

SECTION 903.  Execution of Supplemental Indentures.

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

SECTION 904.  Effect of Supplemental Indentures.

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

SECTION 905.  Conformity with Trust Indenture Act.

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

 

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SECTION 906.  Reference in Securities to Supplemental Indentures.

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company and the Guarantor shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and the Guarantor, to any such supplemental indenture may be prepared and executed by the Company, the Guarantees endorsed thereon may be executed by the Guarantor and such Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

ARTICLE TEN

COVENANTS

SECTION 1001.  Payment of Principal, Premium and Interest.

The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.

SECTION 1002.  Maintenance of Office or Agency by Company.

The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. With respect to any Global Security, any such presentation, payment, notice or demand effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at such office or agency in the Place of Payment for such Global Security in accordance with the provisions of this Indenture. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

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SECTION 1003.  Maintenance of Office or Agency by Guarantor.

The Guarantor will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment under the Guarantees endorsed thereon and where notices and demands to or upon the Guarantor in respect of the Guarantees endorsed on the Securities of that series and this Indenture may be served. The Guarantor will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Guarantor hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

The Guarantor may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for such purpose or where such notices or demands may be served and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Guarantor of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Guarantor will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

SECTION 1004.  Money for Securities Payments to be Held in Trust.

If the Company or the Guarantor shall at any time act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of or any premium or interest on, any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.

 

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The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

Any moneys deposited with the Trustee or any Paying Agent, or then held by the Company or the Guarantor, in trust for the payment of the principal of or any premium or interest on any Security of any series, and remaining unclaimed for two years after the date when such principal or interest has become due and payable, shall be paid to the Company or the Guarantor, as the case may be, on Company Request, or (if then held by the Company or the Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantor for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust moneys, and all liability of the Company or the Guarantor as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, as the case may be.

SECTION 1005.  Annual Certificate of Compliance.

The Company and the Guarantor will each deliver to the Trustee, within 120 days after the end of each fiscal year of the Guarantor ending after the date hereof, an Officer’s Certificate, stating whether or not to the best knowledge of the signer thereof the Company or the Guarantor, as the case may be, is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company or the Guarantor, as the case may be, shall be in default, specifying all such defaults and the nature and status thereof of which he or she may have knowledge.

SECTION 1006.  Corporate Existence.

Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

SECTION 1007.  Waiver of Certain Covenants.

 

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Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company and the Guarantor may, with respect to the Securities of any series or the Guarantees endorsed thereon, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(19), 901(2) or 901(7) for the benefit of the Holders of such series or in any of Sections 1006 or 1008, if before or after the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

SECTION 1008.  Additional Amounts.

Except as otherwise specified as contemplated by Section 301 or Article Nine for Securities of such series, all payments by the Company or the Guarantor in respect of Securities of any series shall be made free and clear of, and without withholding or deduction for or on account of, any tax, duty, assessment or other governmental charge of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of any taxing jurisdiction in which the Company or the Guarantor is organized, resident or doing business for tax purposes, or from or through which any payment is made by or on behalf of the Company or the Guarantor, or any political subdivision thereof or therein (a “Relevant Taxing Jurisdiction”; and each such tax, duty, assessment or other governmental charge, along with any related interest, penalties or additions to tax, hereafter “Taxes”), unless such withholding or deduction is required by law. If any applicable withholding agent is required by law to make any such withholding or deduction, the Company or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as will result in receipt by a Beneficial Tax Owner of such Security of such amounts, after all required withholdings or deductions (including with respect to the Additional Amounts), as would have been received by such Beneficial Tax Owner had no such withholding or deduction been required, except that no Additional Amounts will be payable with respect to a payment made to a Holder or Beneficial Tax Owner of such Security for or in respect of:

(1) Any Taxes that would not have been imposed but for:

(A) the existence of any present or former connection between the relevant Holder or such Beneficial Tax Owner and the Relevant Taxing Jurisdiction (including without limitation, by virtue of the Holder or Beneficial Tax Owner of such Security being or having been citizen or resident of, being or having been incorporated or carrying on a business in, having or having had a permanent establishment or a place of business in such jurisdiction), other than as a result of merely acquiring, holding, owning, receiving payment on, disposing of or enforcing such Security;

 

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(B) the presentation of a Security of such series (where presentation is required) for payment more than 30 days after the date such payment was due and payable or was provided for, whichever is later, except to the extent that Additional Amounts would have been payable had the Security been presented on the last day of such 30-day period; (C) with respect to any Canadian withholding tax, (i) the Holder or Beneficial Tax Owner of such Security not dealing at arm’s length, within the meaning of the Tax Act, with the Company or the Guarantor at the relevant time; (ii) the Company or the Guarantor having an obligation to pay an amount under or in respect of such Security to a person, other than the recipient of the interest, with which the Company or the Guarantor is not dealing at arm’s length, within the meaning of the Tax Act; or (iii) the Company or the Guarantor being a “specified entity” (as defined in subsection 18.4(1) of the Tax Act) in respect of such Holder or Beneficial Tax Owner; or

(D) with respect to any Canadian withholding tax, the Holder or Beneficial Tax Owner of the Security being a “specified non-resident shareholder”, or not dealing at arm’s length with any “specified shareholder” within the meaning of the Tax Act, of the Company or the Guarantor for the purposes of the thin capitalization rules in the Tax Act;

(2) any estate, inheritance, gift, sales, transfer, personal property or similar Tax;

(3) any Taxes imposed by reason of the failure of the Holder or Beneficial Tax Owner of Securities of such series to comply with certification, information, documentation or other reporting requirements that such Holder or Beneficial Tax Owner is legally eligible to comply with after receiving a reasonable written advance request from the Company or the Guarantor to so comply, if such compliance is required or imposed by a statute, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from or reduction in all or part of such Taxes;

(4) any Taxes payable otherwise than by deduction or withholding from payments in respect of the Securities of such series or under the relevant Guarantee (other than any Taxes imposed pursuant to Part XIII of the Tax Act or any successor provision);

(5) any U.S. Federal withholding Taxes imposed pursuant to Sections 1471 through 1474 of the Code as of the date hereof (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury Regulations or other official administrative guidance promulgated thereunder (and including, for the avoidance of doubt, pursuant to any agreement entered into pursuant to Section 1471(b)(1) of the current Code (or any amended or successor version described above)) or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code; or

(6) any Taxes imposed with respect to any payment of principal of (or premium, if any, on) or interest on such Securities by the Company or the Guarantor to any Holder or Beneficial Tax Owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such a beneficiary, settlor, member or beneficial owner been the actual Holder or Beneficial Tax Owner of such Securities; or

 

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(7) any combination of Clauses (1) through (6) above.

The Company or the Guarantor, if it is the applicable withholding agent, shall(1) make such withholding or deduction and (2) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Company shall make commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from the Relevant Taxing Jurisdiction. The Company shall furnish to the Trustee, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of such payments.

At least 30 days prior to each date on which any payment in respect of the Securities of any series subject to this Section is due and payable, if the Company or the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the Guarantor shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts shall be payable and the amounts so payable and will set forth such other information necessary to enable the applicable Paying Agent to pay such Additional Amounts to the Holders or the Beneficial Tax Owners on the payment date.

Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal of, premium, if any, interest or any other amount payable under or in respect of any Security or under any Guarantee thereof, such mention shall, in the case of Securities of any series subject to this Section, be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

In addition, the Company shall pay any stamp, issue, registration, documentary, value added, excise or other similar Taxes (including interest, penalties, and additions to tax) imposed by any Relevant Taxing Jurisdiction in respect of the creation, issue, delivery, offering, registration, execution or enforcement of the Securities of any series subject to this Section or any Guarantee thereof, or in respect of any documentation with respect thereto.

The foregoing obligations will survive any termination, defeasance or discharge of this Indenture, and any transfer by a Holder or Beneficial Tax Owner of Securities of any series subject to this Section, and will apply, mutatis mutandis, to any successor Person to the Company or the Guarantor and to any jurisdiction in which such successor Person is organized, resident or doing business for tax purposes, or any jurisdiction from or through which any payment is made by or on behalf of the Company or the Guarantor, or any political subdivision thereof or therein.

 

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ARTICLE ELEVEN

REDEMPTION OF SECURITIES

SECTION 1101.  Applicability of Article.

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.

SECTION 1102. Election to Redeem; Notice to Trustee.

The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or Officer’s Certificate or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company (including any such redemption affecting only a single Security and, for the avoidance of doubt, any redemption pursuant to Section 1108), the Company shall, not more than 75 days and at least 20 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.

SECTION 1103. Selection by Trustee of Securities to be Redeemed.

If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days nor less than 10 days prior to the Redemption Date in accordance with the procedures of the Depositary (in the case of Global Securities) or in the case of certificated securities by lot, from the Outstanding Securities of such series not previously called for redemption, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days nor less than 10 days prior to the Redemption Date, in accordance with the procedures of the Depositary (in the case of Global Securities) or in the case of certificated securities by lot, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.

 

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The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

SECTION 1104. Notice of Redemption.

Notice of redemption shall be given by hand delivery, by e-mail or other similar electronic methods, or by first-class mail, postage prepaid, in each case sent not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security Register or, if the Securities to be redeemed are in the form of Global Securities, in accordance with the Applicable Procedures.

All notices of redemption shall state:

(1) the Redemption Date,

(2) the Redemption Price (or if not then ascertainable the method of calculation of the Redemption Price),

(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,

(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,

(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price,

(6) that the redemption is for a sinking fund, if such is the case, and

(7) if applicable, the CUSIP numbers of the Securities of that series.

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company and, unless otherwise specified or contemplated by Section 301, shall be irrevocable.

 

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SECTION 1105. Deposit of Redemption Price.

On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1004) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.

SECTION 1106. Securities Payable on Redemption Date.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest up to, but excluding, the Redemption Date, unless otherwise specified as contemplated by Section 301; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

SECTION 1107. Securities Redeemed in Part.

Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Guarantor or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Guarantor and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered, having endorsed thereon a Guarantee duly executed by the Guarantor.

SECTION 1108. Redemption for Changes in Withholding Taxes.

 

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Except as otherwise specified as contemplated by Section 301 for Securities of such series, each series of Securities may be redeemed, in whole but not in part, at the option of the Company, at any given time upon giving of not less than 10 nor more than 60 days’ notice to the Holders of Securities of such series to be redeemed (which notice may be subject to the satisfaction of one or more conditions precedent) at a Redemption Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including the date of issuance to but excluding the Redemption Date and all Additional Amounts then due and which will become due upon redemption, if the Company certifies to the Trustee in an Officer’s Certificate immediately prior to the giving of such notice that, as a result of any change in, or amendment to, the laws (including any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction, which change or amendment is announced and becomes effective on or after the date hereof (or, if the Relevant Taxing Jurisdiction did not become a Relevant Taxing Jurisdiction until after the date hereof, after such later date), or as a result of any change in or amendment made to any official administrative policy, position or interpretation of any applicable taxing authority within a Relevant Taxing Jurisdiction, or judicial decision rendered by a court of competent jurisdiction, on or after the date hereof (or, if the Relevant Taxing Jurisdiction did not become a Relevant Taxing Jurisdiction until after the date hereof, after such later date) (whether or not made or reached with respect to the Company or any of its Subsidiaries), the Company or the Guarantor is, or on the next relevant payment date would be, obliged (in the opinion of the law firm referenced below) to pay Additional Amounts and, in the reasonable determination of the Company or the Guarantor, the Company or the Guarantor cannot avoid any such payment obligation by taking reasonable measures available to it (including making payments through an alternative jurisdiction), provided that no such notice of redemption will be given earlier than 90 days prior to the earliest date on which the Company or the Guarantor would be obliged to pay such Additional Amounts.

Prior to giving any such notice of redemption of the Securities of such series pursuant to this Section, the Company or the Guarantor will deliver to the Trustee:

(1) an Officer’s Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred; and

(2) a written tax opinion of an internationally recognized law firm experienced in such matters reasonably acceptable to the Trustee, that the Company or the Guarantor has or would become obliged to pay Additional Amounts as a result of such change or amendment. Upon request, such certificate and opinion will be made available for inspection by the Holders.

SECTION 1109. Purchase of Securities.

At any time and from time to time, the Company may, at its option, purchase Securities or beneficial interests in Global Securities in the market or by tender or by private contract at such price or prices and upon such terms and conditions as the Company in its absolute discretion may determine. Notwithstanding the foregoing, the Guarantor and any Subsidiary of the Company or of the Guarantor may purchase Securities at any time in the ordinary course of its business in dealing with securities, subject to applicable law.

In the event of a purchase of beneficial interests in Global Securities, the amount of the decrease in value of each such Global Security, and the new principal amount of each such Global Security shall be evidenced in one of the manners set forth in Section 1107, which such adaptations as are necessary, or in such other manner as may be agreed upon by the Company and the Depositary.

 

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ARTICLE TWELVE

SINKING FUNDS

SECTION 1201. Applicability of Article.

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities or pursuant to Article Nine.

The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.

SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.

The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities, provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

SECTION 1203. Redemption of Securities for Sinking Fund.

Not less than 20 days prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 10 days prior to each such sinking fund payment date, the Depositary (in the case of Global Securities) or the Trustee (in the case of certificated securities) shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and the Trustee shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104.

 

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Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

ARTICLE THIRTEEN

GUARANTEES

SECTION 1301. Guarantee.

The Guarantor hereby fully and unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee and to the Trustee the due and prompt payment of the principal of and any premium or interest on such Security and the due and prompt payment of the sinking fund payments, if any, provided for pursuant to the terms of such Security (the “Guaranteed Obligations”), when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms of such Security and of this Indenture (the “Guarantee”). In case of the failure of the Company punctually to make any such payment of Guaranteed Obligations, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of amalgamation, merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal of (and premium, if any) and interest on such Security. The Guarantees shall constitute guarantees of payment and not of collection.

SECTION 1302. Guarantee Unconditional.

Subject to the provisions with respect to the subordination of such Guarantee to other obligations of the Guarantor as contemplated by Section 301(20), the Guarantee with respect to the Securities of a series shall not be impaired by any modification, supplement, extension or amendment of any contract or agreement to which the parties thereto may hereafter agree, nor by any modification, release or other alteration of any of the Guaranteed Obligations or of any security therefore to which the parties thereto may hereafter agree, nor by any agreements or arrangements whatever with the Company or anyone else.

 

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The liability of the Guarantor hereunder is direct and unconditional and may be enforced without requiring the Trustee first to resort to any other right or security. The obligation of the Guarantor hereunder shall be irrevocable and unconditional irrespective of, shall not be affected or limited by, and shall not be subject to any defense, set-off, counterclaim or termination by reason of: (i) the legality, genuineness, validity, regularity or enforceability of this Guarantee or the liabilities of the Company guaranteed hereby; (ii) any provision of applicable law or regulation prohibiting the payment by the Company of the Guaranteed Obligations; or (iii) any other fact or circumstance which might otherwise constitute a defense to a guarantee including without limitation, any failure to perfect or continue the perfection of any security interest securing all or any part of the Guaranteed Obligations, the invalidity or unenforceability of any of the Guaranteed Obligations, or the release of any party guaranteeing all or a portion of the Guaranteed Obligations. The Guarantor confirms that in executing and delivering this Guarantee it has not relied on any representation, warranty or other statement or agreement by the Trustee. All recourses of the Trustee hereunder shall be exercised in accordance with its powers under the Indenture.

SECTION 1303. Subrogation.

Obligations of the Guarantor to which a Guarantee is subordinated pursuant to Section 301(20) shall not be deemed to have been paid in full unless the holders thereof shall have received cash (or securities or other property satisfactory to such holders) in full payment of such obligations of the Guarantor then outstanding. Upon the payment in full of all such obligations of the Guarantor, the Guarantor shall be subrogated to all rights of the Holder of a Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any) and interest on all Securities of the relevant series shall have been paid in full.

SECTION 1304. Execution and Delivery of Guarantees.

To evidence its guarantee set forth in Section 1301, the Guarantor hereby agrees to execute the Guarantee in a form established pursuant to Section 205, to be endorsed on each Security authenticated and delivered by the Trustee. Each such Guarantee shall be signed manually or by facsimile by a person duly authorized thereto by Board Resolution of the Guarantor.

Guarantees bearing the facsimile signature of any individual who was at any time such an authorized person of the Guarantor shall bind the Guarantor, notwithstanding that such individual shall have ceased to be such an authorized person prior to the authentication and delivery of the Securities upon which such Guarantees are endorsed or was not such an authorized person at the date of such Securities.

 

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The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor.

ARTICLE FOURTEEN

DEFEASANCE AND COVENANT DEFEASANCE

SECTION 1401. Company’s Option to Effect Defeasance or Covenant Defeasance.

Unless otherwise provided as contemplated by Section 301, Sections 1402 and 1403 shall apply to any Securities or any series of Securities, as the case may be, in either case, denominated in U.S. dollars and bearing interest at a fixed rate, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article; and the Company may elect, at its option at any time, to have Sections 1402 and 1403 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1402 or 1403, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any election to have or not to have Sections 1402 and 1403 apply, as the case may be, shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.

SECTION 1402. Defeasance and Discharge.

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, or if this Section shall otherwise apply to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations, and provisions with respect to the subordination of such Securities to any other obligations of the Company as contemplated by Section 301(20) shall cease to be effective, with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 606, 1002, 1003 and 1004, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1403 applied to such Securities.

 

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SECTION 1403. Covenant Defeasance.

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, or if this Section shall otherwise apply to any Securities or any series of Securities, as the case may be, (1) the Company shall be released from its obligations under Sections 1006 and 1008, any covenants provided pursuant to Section 301(19), 901(2) or 901(7) for the benefit of the Holders of such Securities, and (2) the occurrence of any event specified in Section 501(4) (with respect to any of Sections 1006 or 1008, and any such covenants provided pursuant to Section 301(19), 901(2) or 901(7)), shall be deemed not to be or result in an Event of Default and (3) the provisions with respect to the subordination of such Securities or series of Securities to other obligations of the Company pursuant to Section 301(20) shall cease to be effective, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(4)) or applicable provisions with respect to the subordination of such Securities or series of Securities, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or applicable subordination provisions or by reason of any reference in any such Section or applicable subordination provisions to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.

SECTION 1404. Conditions to Defeasance or Covenant Defeasance.

The following shall be the conditions to the application of Section 1402 or Section 1403 to any Securities or any series of Securities, as the case may be:

(1)  The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee that satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments: (A) money in an amount, or (B) U.S. Government Obligations that through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S.

 

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Government Obligation” means (x) any security that is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

(2)  In the event of an election to have Section 1402 apply to any Securities or any series of Securities, or if such Section shall otherwise apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

(3)  In the event of an election to have Section 1403 apply to any Securities or any series of Securities, or if such Section shall otherwise apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

(4)  The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.

(5)  No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Section 501(5), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).

(6)  Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

 

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(7)  Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.

(8)  Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.

(9)  The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with (in each case, subject to the satisfaction of the condition in Clause (5)).

SECTION 1405. Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions.

Subject to the provisions of the last paragraph of Section 1004, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1406, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1404 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law. Money and U.S. Government Obligations so held in trust for the benefit of Securities shall not be subject to the provisions of this Indenture with respect to the subordination of such Securities to other obligations of the Company pursuant to Section 301(20).

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1404 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

 

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SECTION 1406. Reinstatement.

If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1402 or 1403 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1405 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

ARTICLE FIFTEEN

MISCELLANEOUS PROVISIONS

SECTION 1501. Consent to Jurisdiction and Service of Process.

(1)  Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of any U.S. Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York in any action or proceeding arising out of or relating to this Indenture or any Security, or for recognition or enforcement of any judgment, and hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court, or to the extent permitted by law, in such U.S. Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture shall affect any right that the Company or any Holder of Securities of any series may otherwise have to bring any action or proceeding relating to such Securities and/or this Indenture in the courts of any jurisdiction.

(2)  Each party hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture or any Security as set forth in Clause (1) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the courts sitting in the Borough of Manhattan, The City of New York, New York set forth in Clause (1) of this Section.

(3)  The Company and the Guarantor each hereby irrevocably designates, appoints and empowers Corporation Service Company (the “Process Agent”, until a successor is designated by the Company and the Guarantor by written notice to the Trustee; thereafter, the Process Agent shall mean such successor), in the case of any suit, action or proceeding brought in the United States of America as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any action or proceeding arising out of or in connection with this Indenture or any Securities.

 

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Such service may be made by mailing (by registered or certified mail, postage prepaid) or delivering a copy of such process to the Company or the Guarantor, as the case may be, in care of the Process Agent at 1180 Avenue of the Americas, Suite 210, New York, NY 10036 (or at such other address in the Borough of Manhattan, The City of New York, as the Company or the Guarantor, as the case may be, may designate by written notice to the Trustee), and the Company and the Guarantor each hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, the Company and the Guarantor each hereby irrevocably consents to the service of any and all process in any such action or proceeding by the mailing (by registered or certified mail, postage prepaid) of copies of such process to the Company or the Guarantor, as the case may be, in the manner provided in Section 105.

(4)  To the extent permitted by law, each of the Company and the Guarantor hereby irrevocably waives personal service of any and all process that is served upon it pursuant to the terms of this Section. Nothing in this Indenture will affect the right of any party hereto to serve process in any other manner permitted by law.

SECTION 1502. Indenture and Securities Solely Corporate Obligations.

No recourse under or upon any obligation, covenant or agreement of this Indenture, any supplemental indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer, director or employee, as such, past, present or future, of the Company, the Guarantor, or of any successor corporation to the Company or the Guarantor, either directly or through the Company or the Guarantor, as the case may be, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers, directors or employees, as such, of the Company, the Guarantor or of any successor corporation to the Company or the Guarantor, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or any of the Securities or the Guarantees or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer, director or employee, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or the Guarantees or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture, the issue of such Securities and the execution of such Guarantees.

 

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SECTION 1503. Execution in Counterparts.

This Indenture may be executed by manual, facsimile or electronic signature (provided that any such electronic signature is a true representation of the signer’s actual signature; provided, further, that any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309) is permissible), and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

SECTION 1504. Foreign Account Tax Compliance Act (FATCA).

In order to comply with applicable tax laws (inclusive of rules, regulations, directives and published interpretations promulgated by competent authorities) in effect from time to time pursuant to Sections 1471 through 1474 of the Code, or any successor provisions (“Applicable Tax Law”) that any foreign financial institution, issuer, Trustee, Paying Agent, Holder or other institution is or has agreed to be subject to related to the Indenture and the Securities, the Company agrees (1) upon reasonable written request of the Trustee to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions related to this Indenture and the Securities (including any modification to the terms of such transactions) so the Trustee can determine whether it has tax-related obligations under Applicable Tax Law, to the extent such information is reasonably available to the Company; and (2) that the Trustee shall be entitled to make, to the extent it is required to do so under Applicable Tax Law, any withholding or deduction in respect of taxes from payments under the Indenture for which the Trustee shall not have any liability. Each Holder of the Securities by accepting a Security shall be deemed to have agreed that the Company may provide to the Trustee such information concerning such Holder as the Trustee may reasonably request in order to determine whether the Trustee has any tax-related obligations under Applicable Tax Law with respect to the payments made to such Holder under this Indenture.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.

 

 

U.S. Subordinated Indenture

Exhibit 99.3

BELL CANADA

Company

and

BCE INC.

Guarantor

and

THE BANK OF NEW YORK MELLON

Trustee

 

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of February 18, 2025

to

SUBORDINATED INDENTURE

Dated as of February 18, 2025

TABLE OF CONTENTS

__________________________

PAGE

 

RECITALS OF THE COMPANY					1
RECITALS OF THE GUARANTOR					1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION					2
Section 101		Relation to Base Indenture			2
Section 102		Incorporation by Reference of Trust Indenture Act			2
Section 103		Trust Indenture Act to Control			2
Section 104		Definitions			2
ARTICLE TWO THE NOTES					8
Section 201		Designation; Aggregate Principal Amount			8
Section 202		Global Securities			8
Section 203		Guarantees			8
Section 204		Maturity; Place of Payment			8
Section 205		Interest			8
Section 206		Denomination			10
Section 207		Redemption			10
Section 208		No Sinking Fund			10
ARTICLE THREE DEFAULTS AND REMEDIES					11
Section 301		Events of Default			11
Section 302		Acceleration			12
ARTICLE FOUR OPTION TO DEFER INTEREST PAYMENTS					13
Section 401		Option to Defer Interest Payments			13
ARTICLE FIVE SUBORDINATION					15
Section 501		Subordination of Notes to Bell Canada Senior Debt			15
Section 502		Subordination of Guarantee to Guarantor Senior Debt			16
Section 503		Disputes with Holders of Certain Senior Indebtedness			16
Section 504		Subrogation			17
Section 505		Obligation of Company Unconditional			17
Section 506		Payments on Notes Permitted			18
Section 507		Effectuation of Subordination by Trustee			18
Section 508		Knowledge of Trustee			18
Section 509		Trustee May Hold Senior Indebtedness			18
Section 510		Rights of Holders of Senior Indebtedness Not Impaired			19
Section 511		Article Applicable to Paying Agents			19

 

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Section 512		Trustee; Compensation Not Prejudiced			19
ARTICLE SIX MISCELLANEOUS					20
Section 601		Effect of Headings			20
Section 602		Successors and Assigns			20
Section 603		Separability Clause			20
Section 604		Governing Law			20
Section 605		U.S.A. PATRIOT Act			20
Section 606		FATCA			20
Section 607		Electronic Communications			21
Section 608		Funds Held by the Trustee			22
EXHIBIT A					A-1
EXHIBIT B					B-1

 

ii

FIRST SUPPLEMENTAL INDENTURE, dated as of February 18, 2025 (the “First Supplemental Indenture”), among BELL CANADA, a corporation incorporated under the laws of Canada (the “Company”), BCE INC., a corporation incorporated under the laws of Canada (the “Guarantor”) and The Bank of New York Mellon, a New York banking corporation, as Trustee hereunder (the “Trustee”).

RECITALS OF THE COMPANY

The Company and the Guarantor have each heretofore executed and delivered to The Bank of New York Mellon, as trustee, a Subordinated Indenture, dated as of February 18, 2025 (the “Base Indenture,” as the same may be amended or supplemented from time to time, including by this First Supplemental Indenture, the “Subordinated Indenture”), providing for the issuance from time to time of the Company’s subordinated debt securities to be issued in one or more series (herein and therein called the “Subordinated Debt Securities”) and the guarantee thereof by the Guarantor, in each case as described therein.

Sections 201, 301 and 901 of the Base Indenture permit the Company, the Guarantor and the Trustee to enter into an indenture supplemental to the Base Indenture to provide for the issuance of, and establish the form and terms of, additional series of Subordinated Debt Securities.

The Company has authorized the issuance of $1,000,000,000 in aggregate principal amount of its 6.875% Fixed-to-Fixed Rate Junior Subordinated Notes, Series A due 2055 (the “Notes”).

The Notes will be established as a series of Subordinated Debt Securities under the Subordinated Indenture.

All things necessary to make this First Supplemental Indenture a valid agreement of the Company, in accordance with its terms, have been done.

RECITALS OF THE GUARANTOR

The Guarantor desires to make the Guarantee provided for herein.

All things necessary to make this First Supplemental Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

 

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ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 101 Relation to Base Indenture.

This First Supplemental Indenture constitutes a part of the Base Indenture (the provisions of which, as modified by this First Supplemental Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any other series of Subordinated Debt Securities or affect in any manner the terms and conditions of the Subordinated Debt Securities of any other series.

Section 102 Incorporation by Reference of Trust Indenture Act.

The Subordinated Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the Subordinated Indenture. The following Trust Indenture Act terms have the following meanings:

“Indenture Securities” shall mean the Subordinated Debt Securities.

“Indenture to Be Qualified” shall mean the Subordinated Indenture.

“Indenture Trustee or Institutional Trustee” shall mean the Trustee.

“Obligor” with reference to Indenture Securities shall mean the Company.

All other terms in the Subordinated Indenture that are defined by the Trust Indenture Act, defined by it by reference to another statute or defined by Commission rule have the meanings assigned to them by such definitions.

Section 103 Trust Indenture Act to Control.

If any provision included in the Subordinated Indenture limits, qualifies or conflicts with another provision included in the Subordinated Indenture that is required to be included in the Subordinated Indenture by the Trust Indenture Act, such required provision shall control. If any provision of the Subordinated Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, that provision of the Trust Indenture Act shall be deemed to apply to the Subordinated Indenture as so modified or to be excluded, as the case may be.

Section 104 Definitions.

For all purposes of this First Supplemental Indenture, the capitalized terms used herein that are defined in this Section 104 have the respective meanings assigned thereto in this Section 104, and the capitalized terms used herein that are defined in the Base Indenture and not defined in this Section 104 have the respective meanings assigned thereto in the Base Indenture. For all purposes of this First Supplemental Indenture:

 

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(1) the terms defined in this Article One have the meanings assigned to them in this Article One, and include the plural as well as the singular;

(2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(3) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;

(4) all references to “dollars” and “$” shall mean U.S. dollars unless otherwise indicated; and

(5) for the avoidance of doubt, any reference to a facsimile signature shall include an image of a signature produced electronically.

“1996 Indenture Subordinated Debentures” means the subordinated debentures issued under the 1996 Subordinated Indenture.

“1996 Subordinated Indenture” means the indenture dated as of April 17, 1996 and indentures supplemental thereto executed by the Company in favour of Montreal Trust Company (the predecessor company of Computershare Trust Company of Canada), as trustee (as amended and supplemented from time to time in accordance with the terms thereof).

“Administrative Action” means any judicial decision, administrative pronouncement, published or private ruling, regulatory procedure, rule, notice, announcement, assessment or reassessment (including without limitation any notice or announcement of intent to adopt or issue such decision, pronouncement, ruling, procedure, rule, notice, announcement, assessment or reassessment).

“Additional Amounts” has the meaning ascribed to such term in the Base Indenture.

“Additional Notes” has the meaning ascribed to such term in Section 201.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Authorized Officers” has the meaning ascribed to such term in Section 607.

“Bell Canada Senior Debt” means the principal of, premium, if any, interest on and all other amounts in respect of: (i) indebtedness for borrowed money, other than indebtedness represented by the Notes, issued, assumed or guaranteed by the Company, including all present or future obligations of the Company under the 1996 Indenture Subordinated Debentures and the 1996 Subordinated Indenture, or for the deferred purchase price of property (including, without

 

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limitation, by means of debt instruments and finance leases and any liability evidenced by bonds, debentures, notes or similar instruments); (ii) all other liabilities of the Company created, incurred, assumed or guaranteed by the Company; and (iii) renewals, extensions or refunding of any indebtedness referred to in (i) or (ii) of this definition, except that the Bell Canada Senior Debt shall not include, in each case, indebtedness or other liabilities which by their terms rank in right of payment equally with or subordinate to the Notes (including Junior Parity Indebtedness).

“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the City of Montréal, City of New York or the City of Toronto are authorized or obligated by law or executive order to close.

“Calculation Agent” means any Person, which may be the Company or any of the Company’s Affiliates, appointed by the Company from time to time to act as calculation agent with respect to the Notes.

“Code” means the Internal Revenue Code of 1986, as amended.

“DBRS” means DBRS Limited, or its successor.

“Dividend Restricted Shares” means, (i) in respect of the Guarantor, collectively, the common shares and preferred shares in the capital of the Guarantor, and (ii) in respect of the Company, collectively, the common shares and preferred shares in the capital of the Company.

“DTC” means the Depository Trust Company or its nominee.

“Event of Default” has the meaning ascribed to such term in Section 301.

“Electronic Means” has the meaning ascribed to such term in Section 607.

“FATCA” has the meaning ascribed to such term in Section 606.

“First Reset Date” means September 15, 2030.

“Five-Year U.S. Treasury Rate” means, as of any Interest Reset Determination Date, as applicable, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published H.15, for the U.S. Treasury security with a maturity of five years from the next Interest Reset Date and trading in the public securities market or (2) if there is no such published U.S. Treasury security with a maturity of five years from the next Interest Reset Date and trading in the public securities market, the rate shall be determined by the Calculation Agent by interpolation or extrapolation on a straight line basis between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Interest Reset Date following the next succeeding Interest Reset Determination Date, and (B) the other maturing as close as possible to, but later than, the Interest Reset Date following the next succeeding Interest Reset Determination Date, in each case as published in the most recently published H.15. If the H.15 is no longer published or the Five-Year U.S. Treasury Rate cannot be determined pursuant to the methods described in clauses (1) or (2) above, then

 

4

the Five-Year U.S. Treasury Rate shall be the Five-Year U.S. Treasury Rate in effect for the prior Subsequent Fixed Rate Period, or, in the case the First Reset Date, 4.485%.

“Global Securities” has the meaning ascribed to such term in Section 202.

“Guarantee” means the guarantee, on a junior subordinated basis, of the full and timely payment when due, whether at stated maturity, by required payment, acceleration, declaration, demand or otherwise, of all of the payment obligations of the Company under the Subordinated Indenture and the Notes.

“Guarantor Senior Debt” means the principal of, premium, if any, interest on and all other amounts in respect of: (i) indebtedness, for borrowed money, other than indebtedness represented by the Guarantee, issued, assumed or guaranteed by the Guarantor, including all present or future obligations of the Guarantor in respect of its guarantee of the Company’s obligations under the 1996 Indenture Subordinated Debentures and the 1996 Subordinated Indenture, or for the deferred purchase price of property (including, without limitation, by means of debt instruments and finance leases and any liability evidenced by bonds, debentures, notes or similar instruments); (ii) all other liabilities of the Guarantor created, incurred, assumed or guaranteed by the Guarantor; and (iii) renewals, extensions or refunding of any indebtedness referred to in (i) or (ii) of this definition, except that Guarantor Senior Debt shall not include, in each case, indebtedness or other liabilities which by their terms rank in right of payment equally with or subordinate to the Guarantee (including the Guarantor’s guarantee of the Company’s obligations under Junior Parity Indebtedness).

“H.15” means the daily statistical release designated as such, or any successor publication as determined by the Calculation Agent in its sole discretion, published by the Board of Governors of the United States Federal Reserve System, and “most recently published H.15” means the H.15 published closest in time but prior to the close of business on the applicable Interest Reset Determination Date.

“Holders” means the registered holders, from time to time, of the Notes or, where the context requires, all of such holders.

“Instructions” has the meaning ascribed to such term in Section 607.

“Interest Payment Date” means March 15 and September 15 of each year, commencing on September 15, 2025.

“Interest Reset Date” means the date falling on the fifth anniversary of the First Reset Date and each date falling on the fifth anniversary of the preceding Interest Reset Date.

“Interest Reset Determination Date” means, for any Subsequent Fixed Rate Period, the date that is one Business Day prior to the first day of such Subsequent Fixed Rate Period.

“Junior Parity Indebtedness” means (i) in respect of the Guarantor, any class or series of the Guarantor’s indebtedness currently outstanding or hereafter created which expressly ranks equally (pari passu) with the Guarantee, and (ii) in respect of the Company, any class or series of the Company’s indebtedness currently outstanding or hereafter created which expressly ranks

 

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equally (pari passu) with the Notes as to distributions upon liquidation, dissolution or winding-up.

“Maturity Date” means September 15, 2055.

“Moody’s” means Moody’s Investors Service, Inc., or its successor.

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Rating Agencies” means each of Moody’s, S&P and DBRS as long as, in each case, it has not ceased to rate such Notes or failed to make a rating of such Notes publicly available for reasons outside of the Company’s control; provided that if one or more of Moody’s, S&P or DBRS ceases to rate such Notes or fails to make a rating of such Notes publicly available for reasons outside of the Company’s control, the Company may select any other “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended, as a replacement agency for such one or more of them, as the case may be.

“Rating Event” means an amendment, clarification or change to the criteria that any Rating Agency uses to assign equity credit to securities such as the Notes following the initial rating of the Notes by such Rating Agency, which amendment, clarification or change results in (a) the shortening of the length of time the Notes are assigned a particular level of equity credit by that Rating Agency as compared to the length of time the Notes would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial rating of the Notes by such Rating Agency; or (b) the lowering of the equity credit (including up to a lesser amount) assigned to the Notes by that Rating Agency compared to the equity credit assigned by that Rating Agency or its predecessor on the initial rating of the Notes by such Rating Agency.

“Regular Record Date” has the meaning ascribed to such term in Section 205.

“Subsequent Fixed Rate Period” means the period from, and including, the First Reset Date to, but excluding, the next Interest Reset Date and each five-year period thereafter from, and including, the most recent Interest Reset Date to, but excluding, the next Interest Reset Date (or the Maturity Date or date of redemption, as applicable).

“Senior Creditor” means a holder or holders of Bell Canada Senior Debt and includes any representative or representatives or trustee or trustees of any such holder and such other lenders providing advances to the Company pursuant to Bell Canada Senior Debt.

“S&P” means S&P Global Ratings, a division of S&P Global Inc., or its successor.

“Tax Event” means the Company has received an opinion of independent counsel of a nationally recognized law firm in Canada or the United States experienced in such matters (who may be counsel to the Company) to the effect that, as a result of: (a) any amendment to, clarification of or change (including without limitation any announced prospective change) in the laws, or any regulations thereunder, or any application or interpretation thereof, of Canada or the United States, or any political subdivision or taxing authority thereof or therein, affecting

 

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taxation; any Administrative Action; or any amendment to, clarification of or change (including any announced prospective change) in the official position with respect to or the interpretation of any Administrative Action or any interpretation or pronouncement that provides for a position with respect to such Administrative Action that differs from the theretofore generally accepted position, in each case, by any legislative body, court, governmental authority or agency, regulatory body or taxing authority, irrespective of the manner in which such amendment, clarification, change, Administrative Action, interpretation or pronouncement is made known, which amendment, clarification, change or Administrative Action is effective or which interpretation, pronouncement or Administrative Action is announced on or after the date of the issue of the Notes, there is more than an insubstantial risk (assuming any proposed or announced amendment, clarification, change, interpretation, pronouncement or Administrative Action is effective and applicable) that the Company (i) is, or may be, subject to more than a de minimis amount of additional taxes, duties or other governmental charges or civil liabilities because the treatment of any of its items of income, taxable income, expense, deduction of expense, taxable capital or taxable paid-up capital with respect to the Notes (including without limitation the treatment by the Company of interest on the Notes and the deductibility of such interest), as or as would be reflected in any tax return or form filed, to be filed, or otherwise could have been filed, will not be respected by a taxing authority or (ii) is, or may be, obligated to pay, on the next Interest Payment Date for the Notes, Additional Amounts with respect to the Notes.

“Taxes” has the meaning ascribed to such term in the Base Indenture.

 

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ARTICLE TWO

THE NOTES

Section 201 Designation; Aggregate Principal Amount.

(a) The Notes shall be known and designated as the “6.875% Fixed-to-Fixed Rate Junior Subordinated Notes, Series A due 2055.”

(b) The aggregate principal amount of the Notes that may be authenticated and delivered under this First Supplemental Indenture is limited to $1,000,000,000, as increased by the amount of any Additional Notes issued pursuant to this First Supplemental Indenture, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes issued pursuant to Section 304, 305, 306, 906 or 1107 of the Base Indenture or Article Two of this First Supplemental Indenture. The Company may, from time to time, without the consent of the Holders of the Notes, reopen the series constituting the Notes and issue additional Notes (the “Additional Notes”) having the same ranking and the same interest rate, maturity and other terms as the Notes, except for the public offering price, the issue date and, if applicable, the initial interest payment date and initial interest accrual date. Any such Additional Notes, together with the initial Notes, shall constitute a single series of Subordinated Debt Securities under the Base Indenture.

Section 202 Global Securities.

Upon original issuance, the Notes shall be represented by one or more global securities (the “Global Securities”) having an aggregate principal amount equal to that of the Notes represented thereby. Each Global Security shall be deposited with, or on behalf of, DTC, as depositary, and registered in the name of Cede & Co. (or such other nominee as may be designated by DTC), as nominee of DTC. The Global Securities shall bear legends regarding the restrictions on exchanges and registration of transfer thereof substantially in the form set out in Exhibit A hereto.

Section 203 Guarantees.

The Guarantees shall be substantially in the form set out in Exhibit B hereto.

Section 204 Maturity; Place of Payment.

The Stated Maturity of the Notes shall be September 15, 2055. The Place of Payment with respect to the Notes shall initially be the Corporate Trust Office of the Trustee.

Section 205 Interest.

(a) The Notes shall bear interest (i) from and including February 18, 2025, to but excluding the First Reset Date at an annual rate of 6.875% and thereafter (ii) from and including the First Reset Date and on every Interest Reset Date, with respect to each Subsequent Fixed Rate Period, to, but excluding, the next succeeding Interest Reset Date, the Maturity Date or the date of redemption, as the case may be, at an annual rate, to be reset on each Interest Reset Date, equal to the Five-Year U.S. Treasury Rate as of the most recent Interest Reset Determination Date, plus a spread of 2.390%; provided, that the interest rate during any Subsequent Fixed Rate Period will not reset below 6.875%.

 

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(b) Subject to the Company’s right to defer interest payments pursuant to Article Four of this First Supplemental Indenture, interest on the Notes shall be payable semi-annually in arrears on each Interest Payment Date to the person in whose name such Note is registered at the close of business on each March 1 or September 1 (the “Regular Record Date”), as applicable, preceding such Interest Payment Date (whether or not a Business Day), provided that interest payable at maturity or on a redemption date shall be paid to the person to whom principal is payable.

(c) Unless all of the outstanding Notes have been redeemed as of the First Reset Date, the Company shall appoint the Calculation Agent with respect to the Notes prior to the Interest Reset Determination Date preceding the First Reset Date. The Company or any of its affiliates may be appointed as the Calculation Agent. The applicable interest rate for each Subsequent Fixed Rate Period shall be determined by the Calculation Agent as of the applicable Interest Reset Determination Date. If the Company or one of its affiliates is not the Calculation Agent, the Calculation Agent shall notify the Company of the interest rate for the relevant Subsequent Fixed Rate Period promptly upon such determination. the Company shall notify the Trustee of such interest rate, promptly upon making or being notified of such determination. The Calculation Agent’s determination of any interest rate and its calculation of the amount of interest for any Subsequent Fixed Rate Period beginning on or after the First Reset Date shall be conclusive and binding absent manifest error, shall be made in the Calculation Agent’s sole discretion and, notwithstanding anything to the contrary in the documentation relating to the Notes, shall become effective without consent from any other person or entity. Such determination of any interest rate and calculation of the amount of interest shall be on file at the Company’s principal offices and shall be made available to any Holder of the Notes upon request.

(d) Interest for each period between Interest Payment Dates shall be calculated on the basis of a 360-day year consisting of twelve 30-day months and, for any period shorter than six months, on the basis of the actual number of days elapsed per 30-day month. For the purposes of disclosure under the Interest Act (Canada), and without affecting the interest payable on the Notes, whenever the interest rate on the Notes is to be calculated on the basis of a period of less than a calendar year, the yearly interest rate equivalent for such interest rate will be the interest rate multiplied by the actual number of days in the relevant calendar year.

(e) The principal of, interest and premium (if any) on, and any redemption price of, the Notes shall be paid in lawful money of the United States.

(f) If an Interest Payment Date falls on a day that is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day, and no further interest shall accrue in respect of such postponement. In addition, if a redemption date or a Maturity Date of the Notes falls on a day that is not a Business Day, the payment of any amounts owing in respect of the Notes shall be made on the next succeeding Business Day and no interest on such

 

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payment shall accrue for the period from and after the redemption date or the Maturity Date, as applicable.

Section 206 Denomination.

The Notes shall be issued only in fully registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

Section 207 Redemption.

(a) The Company shall be entitled, at its option, to redeem the Notes, in whole at any time or in part from time to time, by giving prior notice of not less than 10 days nor more than 60 days to the Holders of the Notes, and upon such conditions as may be specified in the applicable notice of redemption, at a redemption price equal to 100% of the principal amount thereof: (a) on any day in the period commencing on and including the date that is 90 days prior to the First Reset Date and ending on and including such First Reset Date; and (b) thereafter, on any applicable Interest Payment Date, in each case together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. Notes that are redeemed shall be cancelled and shall not be reissued.

(b) At any time on or within 90 days following the occurrence of a Tax Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Notes, redeem all (but not less than all) of the Notes at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. If there is a Tax Event on or after the date that is 90 days prior to the First Reset Date, the Company may elect an optional redemption of the Notes pursuant to Section 207(a) of this First Supplemental Indenture rather than a redemption by way of the Tax Event optional redemption right.

(c) At any time on or within 90 days following the occurrence of a Rating Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Notes, redeem all (but not less than all) of the Notes at a redemption price equal to 102% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. If there is a Rating Event on or after the date that is 90 days prior to the First Reset Date, the Company may elect an optional redemption of the Notes pursuant to Section 207(a) of this First Supplemental Indenture rather than a redemption by way of the Rating Event optional redemption right.

Section 208 No Sinking Fund.

The Company shall not be required to make sinking fund payments with respect to the Notes.

 

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ARTICLE THREE

DEFAULTS AND REMEDIES

Section 301 Events of Default.

Section 501 of the Base Indenture shall not apply to the Notes. An “Event of Default” in respect of the Notes shall occur only if the Company:

(a) defaults in the payment of any interest on the Notes when due and payable, and such default continues for a period of 90 days (subject to the Company’s right, at its option, to defer interest payments on the Notes pursuant to Article Four of this First Supplemental Indenture);

(b) defaults in the payment of the principal amount of or the applicable redemption price of such Notes, as applicable, when due and payable, and such default continues for a period of five days;

(c) makes an assignment for the general benefit of creditors or is adjudicated insolvent or bankrupt, or has petitioned or has applied to any court having jurisdiction for the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or has commenced any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency reorganization, arrangement, or readjustment of Debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter called “Proceeding”); or there has been commenced against the Company any Proceeding and an order approving such Proceeding shall have been rendered, or such Proceeding shall have remained undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company shall have been appointed; or the Company shall have indicated consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company, provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another corporation or the transfer of its assets as a whole, or substantially as a whole, to such other corporation as provided in Section 801 of the Base Indenture shall not make the rights and remedies herein enforceable under this Clause if such last-mentioned corporation shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 801 of the Base Indenture; or

(d) defaults in the performance or observance of any covenant, agreement or condition of the Subordinated Indenture and such default continues for a period of 90 days after written notice has been given by (i) the Trustee to the Company specifying such default and requiring the Company to remedy the same or (ii) the Holders of not less than 25% in principal amount of the Notes at the time outstanding to the Company and the Trustee specifying such default.

 

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Section 302 Acceleration.

Section 502 of the Base Indenture shall apply to the Notes, except that the following sentence shall be inserted at the end of the first paragraph of such section:

Notwithstanding the forgoing, if an Event of Default specified in Section 301(d) occurs and is continuing, neither the Trustee nor the Holders of the Notes shall be entitled to declare the principal of the Notes, or accrued or unpaid interest thereon, to be due or payable immediately; provided that the Trustee and the Holders may exercise the other rights and remedies available under the Indenture and under applicable law upon the occurrence of an Event of Default specified in Section 301(d).

 

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ARTICLE FOUR

OPTION TO DEFER INTEREST PAYMENTS

Section 401 Option to Defer Interest Payments.

(a) So long as no Event of Default has occurred and is continuing, the Company may elect, at its option, on any date other than an Interest Payment Date, to defer the interest payable on the Notes on one or more occasions for for up to five consecutive years (each, a “Deferral Period”). There is no limit on the number of Deferral Periods that may occur. Such deferral shall not constitute an Event of Default or any other breach under the Subordinated Indenture or the Notes. Deferred interest shall accrue at the then-applicable interest rate for the Notes (as reset from time to time in accordance with the terms of the Notes), compounding on each applicable subsequent Interest Payment Date, until paid, to the extent permitted by applicable law. A Deferral Period with respect to the Notes terminates on any Interest Payment Date where the Company pays all accrued and unpaid interest (including deferred interest, as applicable) in respect of the Notes on such date. No Deferral Period may extend beyond the Maturity Date and, for greater certainty, all accrued and unpaid interest (including deferred interest, as applicable, to the extent permitted by law) in respect of the Notes shall be due and payable on the Maturity Date or any date fixed for redemption of the Notes, as applicable.

(b) Unless the Company has paid all interest that has been deferred or is then payable on the Notes, neither the Guarantor nor the Company shall:

(i) declare any dividend on the Dividend Restricted Shares or pay any interest on any Junior Parity Indebtedness;

(ii) redeem, purchase or otherwise retire any Dividend Restricted Shares or Junior Parity Indebtedness; or

(iii) make any payment to holders of, or in respect of, any of the Dividend Restricted Shares or any of the Junior Parity Indebtedness in respect of dividends not declared or paid on such Dividend Restricted Shares or interest not paid on such Junior Parity Indebtedness, respectively.

(c) Notwithstanding the forgoing provisions of Section 401(b), during a Deferral Period, the Company and the Guarantor may:

(i) declare and pay dividends or distributions payable solely in common shares in the capital of the Company or the Guarantor, together with cash in lieu of any fractional shares, or options, warrants or rights to subscribe for or purchase common shares in the capital of the Company or the Guarantor;

(ii) redeem, purchase or otherwise retire any Dividend Restricted Shares out of the net cash proceeds of a substantially concurrent issue of Dividend Restricted Shares;

 

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(iii) redeem, purchase or otherwise retire any Dividend Restricted Shares or rights to subscribe for Dividend Restricted Shares pursuant to any purchase obligation, sinking fund, retraction privilege or mandatory redemption provisions attaching to any series of Dividend Restricted Shares or such rights if under a shareholders rights plan;

(iv) reclassify the Company’s or the Guarantor’s Dividend Restricted Shares or exchange or convert Dividend Restricted Shares for another class or series of the Company’s or the Guarantor’s share capital;

(v) purchase fractional interests in Dividend Restricted Shares pursuant to the conversion or exchange provisions of such Dividend Restricted Shares or the security being converted or exchanged;

(vi) purchase, acquire or withhold Dividend Restricted Shares in connection with the issuance or delivery by the Company or the Guarantor of Dividend Restricted Shares under any dividend reinvestment plan or related to any employment contract, incentive plan, benefit plan or other similar arrangement for the Company’s or the Guarantor’s directors, officers, employees, consultants or advisors;

(vii) declare and pay any dividend on any Dividend Restricted Shares of the Company to the extent owned directly or indirectly by the Guarantor; or

(viii) redeem, purchase or otherwise retire any Dividend Restricted Shares of the Company to the extent owned directly or indirectly by the Guarantor.

(d) the Company shall give the Holders of the Notes written notice of its election to commence or continue a Deferral Period at least 10 and not more than 60 days before the next Interest Payment Date.

 

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ARTICLE FIVE

SUBORDINATION

Section 501 Subordination of Notes to Bell Canada Senior Debt.

(a) The Company covenants and agrees, and each Holder of the Notes, by the acceptance thereof, likewise covenants and agrees, that the indebtedness represented by the Notes and the payment of the principal of and premium, if any, and interest on each and all of the Notes is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all present and future Bell Canada Senior Debt. However, the Notes shall rank equally in right of payment with any Junior Parity Indebtedness of the Company.

(b) In the event (i) of any insolvency or bankruptcy proceedings or any receivership, liquidation, reorganization or other similar proceedings in respect of the Company or a substantial part of its property, or of any proceedings for liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy; or (ii) subject to Section 503 of this First Supplemental Indenture, that: (1) a default has occurred with respect to the payment of principal of or interest on or other monetary amounts due and payable on any Bell Canada Senior Debt; or (2) there has occurred an event of default (other than a default in the payment of principal or interest or other monetary amounts due and payable) in respect of any Bell Canada Senior Debt, as defined in the instrument under which such Bell Canada Senior Debt is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof (with notice or lapse of time, or both), and such event of default has continued beyond the period of grace, if any, in respect thereof, and, in the cases of paragraphs (1) and (2), such default or event of default has not been cured or waived or has not ceased to exist; or (3) that the principal of and accrued interest on the Notes has been declared due and payable pursuant to Section 502 of the Base Indenture and such declaration has not been rescinded and annulled as provided therein, then:

(i) the holders of all Bell Canada Senior Debt shall first be entitled to receive payment of the full amount due thereon, or provision shall be made for such payment in money or money’s worth, before the Holders of any of the Notes are entitled to receive a payment on account of the principal of or interest on the indebtedness evidenced by the Notes, including, without limitation, any payments made pursuant to any redemption or purchase for cancellation;

(ii) any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, to which the Holders of any of the Notes or the Trustee would be entitled except for the provisions of this Article Five shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver, receiver and manager or liquidating trustee or otherwise, directly to the holders of such Bell Canada Senior Debt or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Bell Canada Senior Debt may have been issued, ratably according to the aggregate amounts

 

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remaining unpaid on account of such Bell Canada Senior Debt held or represented by each, to the extent necessary to make payment in full of all Bell Canada Senior Debt remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Bell Canada Senior Debt, before any payment or distribution is made to the holders of the indebtedness evidenced by the Notes or to the Trustee under this instrument; and

(iii) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, in respect of principal of or interest on the Notes or in connection with any repurchase by the Company of the Notes, shall be received by the Trustee or the Holders of any of the Notes before all Bell Canada Senior Debt is paid in full, or provision made for such payment in money or money’s worth, such payment or distribution in respect of principal of or interest on the Notes or in connection with any repurchase by the Company of the Notes shall be paid over to the holders of such Bell Canada Senior Debt or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any such Bell Canada Senior Debt may have been issued, ratably as aforesaid, for application to the payment of all Bell Canada Senior Debt remaining unpaid until all such Bell Canada Senior Debt shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Bell Canada Senior Debt.

Section 502 Subordination of Guarantee to Guarantor Senior Debt.

The Guarantor covenants and agrees, and each Holder of the Notes, by the acceptance thereof, likewise covenants and agrees, that the that the payment under the Guarantee of the principal of and premium, if any, and interest, if any, on the Notes is hereby expressly subordinated, to the extent and in the manner set forth in the Guarantee, in right of payment to the prior payment in full of all present and future Guarantor Senior Debt. However, the Guarantee shall rank equally in right of payment with any Junior Parity Indebtedness of the Guarantor.

Section 503 Disputes with Holders of Certain Senior Indebtedness.

Any failure by the Company to make any payment on or perform any other obligation under Bell Canada Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of this Section shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default under 501(b)(2) if (a) the Company shall be disputing its obligation to make such payment or perform such obligation and (b) either (i) no final judgment relating to such dispute shall have been issued against the Company which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, and (ii) in the event of a judgment that is subject to

 

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further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.

Section 504 Subrogation.

Subject to the payment in full of all Bell Canada Senior Debt, the Holders of the Notes shall be subrogated (equally and ratably with the holders of all obligations of the Company which by their express terms are subordinated to Bell Canada Senior Debt of the Company to the same extent as the Notes are subordinated and which are entitled to like rights of subrogation) to the rights of the holders of Bell Canada Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to the Bell Canada Senior Debt until all amounts owing on the Notes shall be paid in full, and as between the Company, its creditors other than holders of such Bell Canada Senior Debt and the Holders, no such payment or distribution made to the holders of Bell Canada Senior Debt by virtue of this Article Five that otherwise would have been made to the Holders shall be deemed to be a payment by the Company on account of such Bell Canada Senior Debt, it being understood that the provisions of this Article Five are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Bell Canada Senior Debt, on the other hand.

Section 505 Obligation of Company Unconditional.

(a) Nothing contained in this Article Five or elsewhere in the Subordinated Indenture or in the Notes is intended to or shall impair, as among the Company, its creditors other than the holders of Bell Canada Senior Debt and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of and premium, if any, and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than the holders of Bell Canada Senior Debt, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon default under the Subordinated Indenture, subject to the rights, if any, under this Article Five of the holders of Bell Canada Senior Debt in respect of cash, property or securities of the Company received upon the exercise of any such remedy.

(b) Upon payment or distribution of assets of the Company referred to in this Article Five, the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, receiver and manager, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of the Bell Canada Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount paid or distributed thereon and all other facts pertinent thereto or to this Article Five.

 

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Section 506 Payments on Notes Permitted.

Nothing contained in this Article Five or elsewhere in the Subordinated Indenture or in the Notes shall affect the obligations of the Company to make, or prevent the Company from making, payment of the principal of and premium, if any, or interest on the Notes in accordance with the provisions hereof and thereof, except as otherwise provided in this Article Five.

Section 507 Effectuation of Subordination by Trustee.

Each Holder by its acceptance thereof authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to effect the subordination as provided in this Article Five and appoints the Trustee as its attorney-in-fact for any and all such purposes. This appointment shall be irrevocable. Upon request of the Company, and upon being furnished a certificate of the Company stating that one or more named Persons are Senior Creditors and specifying the amount and nature of the Bell Canada Senior Debt of such Senior Creditor, the Trustee shall enter into a written agreement or agreements with the Company and the Persons named in such certificate of the Company providing that such Persons are entitled to all the rights and benefits of this Article Five as Senior Creditors and for such other matters, such as an agreement not to amend the provisions of this Article Five and the definitions used herein without the consent of such Senior Creditors, as the Senior Creditors may reasonably request. Such agreement shall be conclusive evidence that the indebtedness specified therein is Bell Canada Senior Debt; however, nothing herein shall impair the rights of any Senior Creditor who has not entered into such an agreement.

Section 508 Knowledge of Trustee.

Notwithstanding the provisions of this Article Five or any other provisions of the Subordinated Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of moneys to or by the Trustee, or the taking of any other action by the Trustee, unless and until the Trustee shall have received written notice thereof mailed or delivered to the Trustee from the Company, any Holder, any paying agent or the holder or representative of any class of Bell Canada Senior Debt; provided that if at least three Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Note) the Trustee shall not have received with respect to such moneys the notice provided for in this Section, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within three Business Days prior to or on or after such date.

Section 509 Trustee May Hold Senior Indebtedness.

The Trustee shall be entitled to all the rights set forth in this Article Five with respect to any Bell Canada Senior Debt at the time held by it, to the same extent as any other holder of Bell Canada Senior Debt, and nothing in the Subordinated Indenture shall deprive the Trustee of any of its rights as such holder.

 

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Section 510 Rights of Holders of Senior Indebtedness Not Impaired.

(a) No right of any present or future holder of any Bell Canada Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of the Subordinated Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.

(b) With respect to the holders of Bell Canada Senior Debt, (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of the Subordinated Indenture, (ii) the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Subordinated Indenture, (iii) no implied covenants or obligations shall be read into the Subordinated Indenture against the Trustee and (iv) the Trustee shall not be deemed to be a fiduciary as to such holders.

Section 511 Article Applicable to Paying Agents.

In case at any time any paying agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article Five shall in such case (unless the context shall require otherwise) be construed as extending to and including such paying agent within its meaning as fully for all intents and purposes as if such paying agent were named in this Article Five in addition to or in place of the Trustee; provided, however, that Sections 508 and 509 of this First Supplemental Indenture shall not apply to the Company if it acts as its own paying agent.

Section 512 Trustee; Compensation Not Prejudiced.

Nothing in this Article Five shall apply to claims of, or payments to, the Trustee pursuant to Section 607 of the Base Indenture.

 

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ARTICLE SIX

MISCELLANEOUS

Section 601 Effect of Headings.

The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 602 Successors and Assigns.

All covenants and agreements in this First Supplemental Indenture by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.

Section 603 Separability Clause.

In case any provision in this First Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 604 Governing Law.

This First Supplemental Indenture, the Notes and the Guarantees shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination provisions in Article Five hereof, which shall be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein.

Section 605 U.S.A. PATRIOT Act.

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this First Supplemental Indenture agree that they shall provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.

Section 606 FATCA.

The Paying Agent and the Trustee shall be entitled to deduct or withhold from payments under this First Supplemental Indenture to the extent necessary to comply with an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof (“FATCA”). The Company hereby covenants that it shall provide the Trustee and Paying Agent with sufficient information (but only to the extent that the Company has knowledge of such information) so as to enable the Trustee and Paying Agent to determine whether or not each of the Trustee and Paying Agent, respectively, is obliged, in respect of any payments to be made by it pursuant to this First Supplemental Indenture, to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code, or otherwise imposed pursuant to Section 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).

 

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Section 607 Electronic Communications.

The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this First Supplemental Indenture and the Base Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and, if the Trustee believes in good faith that such Instructions are genuine and from the person purporting to be the sender of such Instructions, that the Trustee shall have the right to conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction, unless such losses, costs or expenses were caused by the Trustee’s gross negligence, bad faith, fraud or willful misconduct. The Company agrees: (i) subject to the immediately preceding sentence, to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any material compromise or unauthorized use of the security procedures to be followed in connection with its transmission of Instructions.

“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

 

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Section 608 Funds Held by the Trustee.

Funds held by the Trustee are to be held uninvested unless otherwise agreed in writing; provided that no such written agreement shall be required with respect to U.S. Government Obligations deposited with the Trustee in accordance with Article Fourteen of the Base Indenture.

* * * * *

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. As provided in the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), this instrument may be executed by facsimile signature or other electronic signature complying with such Act.

 

22

IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.

 

 

Bell Canada Supplemental Indenture to Subordinated Indenture (2055-A Notes)

Bell Canada Supplemental Indenture to Subordinated Indenture (2055-A Notes)

EXHIBIT A

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

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BELL CANADA

6.875% Fixed-to-Fixed Rate Junior Subordinated Notes, Series A due 2055

 

No. [•]		$[•]
CUSIP No.:0778FPAP4
ISIN No.:US0778FPAP47

Bell Canada, a corporation duly organized and existing under the laws of Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [•] MILLION United States Dollars ($[•]) on September 15, 2055 (the “Maturity Date”), and, subject to the Company’s right to defer interest payments as set forth in the Supplemental Indenture (as defined on the reverse hereof), to pay interest thereon (i) from and including February 18, 2025, to but excluding the First Reset Date at an annual rate of 6.875% and thereafter (ii) from and including the First Reset Date and on every Interest Reset Date, with respect to each Subsequent Fixed Rate Period, to, but excluding, the next succeeding Interest Reset Date, the Maturity Date or the date of redemption, as the case may be, at an annual rate, to be reset on each Interest Reset Date, equal to the Five-Year U.S. Treasury Rate as of the most recent Interest Reset Determination Date, plus a spread of 2.390% provided, that the interest rate during any Subsequent Fixed Rate Period will not reset below 6.875%, semi-annually on March 15 and September 15 in each year (each, an “Interest Payment Date”), commencing September 15, 2025 until the principal hereof is paid or made available for payment. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may, at the Company’s election, either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner deemed appropriate by the Trustee not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

If any scheduled Interest Payment Date is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day, but interest on that payment shall not accrue during the period from and after the scheduled Interest Payment Date unless there is a default in the payment of the interest. If the Maturity Date or date of redemption or repayment is not a Business Day, the payment of interest and principal and/or any amount payable upon redemption or repayment of the Securities shall be made on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after such Maturity Date or date of redemption or repayment unless there is a default in the payment of the principal.

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company or its nominee maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

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Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature (or, solely in the case of a Global Security, facsimile or electronic signature), this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

The following is only applicable to a Holder that is a resident of Canada and purchased this Security pursuant to a prospectus exemption under applicable Canadian securities laws: Unless permitted under securities legislation, such Holder must not trade this Security to or for the benefit of a Canadian purchaser before the date that is four months and a day after the distribution date of this Security.

Unless otherwise specifically stated, all dollar amounts in this Security are expressed in U.S. dollars.

 

A-3

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated: [•], 20[•]

 

 

Bell Canada Global Note Certificate (2055-A), No. [•]

 

A-4

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

Dated: [•], 20[•]

 

Bell Canada Global Note Certificate (2055-A), No. [•]

 

A-5

REVERSE OF SECURITY

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 18, 2025 (the “Base Indenture”), as amended by the First Supplemental Indenture, dated as of February 18, 2025 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, BCE Inc., as Guarantor (herein called the “Guarantor”, which term includes any successor Person under the Indenture) and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $1,000,000,000.

The Company shall be entitled, at its option, to redeem the Securities, in whole at any time or in part from time to time, by giving prior notice of not less than 10 days nor more than 60 days to the Holders of the Securities, and upon such conditions as may be specified in the applicable notice of redemption, at a redemption price equal to 100% of the principal amount thereof: (a) on any day in the period commencing on and including the date that is 90 days prior to the First Reset Date and ending on and including such First Reset Date; and (b) thereafter, on any applicable Interest Payment Date, in each case together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.

At any time on or within 90 days following the occurrence of a Tax Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Securities, redeem all (but not less than all) of the Securities at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.

At any time on or within 90 days following the occurrence of a Rating Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Securities, redeem all (but not less than all) of the Securities at a redemption price equal to 102% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

The indebtedness of the Company evidenced by this Note, including the principal hereof and premium (if any) and interest hereon, is, to the extent and in the manner set forth in the Indenture, subordinate and junior in right of payment to the Company’s obligations to holders all present and future Bell Canada Senior Debt and each Holder of this Note, by acceptance hereof, agrees to and shall be bound by such subordination provisions of the Indenture and all other provisions of the Indenture.

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions

 

A-6

permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company or the Guarantor, or both, with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity against costs, expenses and other liabilities of instituting such proceeding, and the Trustee shall not have received during such 60 day period from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and the Trustee shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

 

A-7

All terms used in this Security which are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.

 

A-8

EXHIBIT B

Guarantee

For value received, the Guarantor (which term includes any successor Person under the Indenture), hereby fully and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee referred to in such Indenture due and prompt payment of the principal of (and premium, if any) and interest on such Security (the “Guaranteed Obligations”) when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein (the “Guarantee”). In case of the failure of the Company (which term includes any successor Person under the Indenture) punctually to make any such payment of Guaranteed Obligations, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of amalgamation, merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal of (and premium, if any) and interest on such Security. This Guarantee shall constitute a guarantee of payment and not of collection.

Subject to the provisions with respect to the subordination of this Guarantee to other obligations of the Guarantor as described below, this Guarantee shall not be impaired by any modification, supplement, extension or amendment of any contract or agreement to which the parties thereto may hereafter agree, nor by any modification, release or other alteration of any of the Guaranteed Obligations or of any security therefore to which the parties thereto may hereafter agree, nor by any agreements or arrangements whatever with the Company or anyone else. The liability of the Guarantor hereunder is direct and unconditional and may be enforced without requiring the Trustee first to resort to any other right or security. The obligation of the Guarantor hereunder shall be irrevocable and unconditional irrespective of, shall not be affected or limited by, and shall not be subject to any defense, set-off, counterclaim or termination by reason of: (i) the legality, genuineness, validity, regularity or enforceability of this Guarantee or the liabilities of the Company guaranteed hereby; (ii) any provision of applicable law or regulation prohibiting the payment by the Company of the Guaranteed Obligations; or (iii) any other fact or circumstance which might otherwise constitute a defense to a guarantee, including without limitation, any failure to perfect or continue the perfection of any security interest securing all or any part of the Guaranteed Obligations, the invalidity or unenforceability of any of the Guaranteed Obligations, or the release of any party guaranteeing all or a portion of the Guaranteed Obligations. The Guarantor confirms that in executing and delivering this Guarantee it has not relied on any representation,

 

B-1

warranty or other statement or agreement by the Trustee. All recourses of the Trustee hereunder shall be exercised in accordance with its powers under the Indenture.

The obligations of the Guarantor to which this Guarantee is subordinated as described below shall not be deemed to have been paid in full unless the Holders thereof shall have received cash (or securities or other property satisfactory to such Holders) in full payment of such obligations of the Guarantor then outstanding. Upon the payment in full of all such obligations of the Guarantor, the Guarantor shall be subrogated to all rights of the Holder of such Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any) and interest on all Securities of the same series issued under such Indenture shall have been paid in full.

The obligations evidenced by this Guarantee are, to the extent provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all present and future Guarantor Senior Debt (as defined in the Indenture), and this Guarantee is issued subject to the provisions of the Indenture with respect thereto. Each Holder of a Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such subordination provisions of the Indenture and all other provisions of the Indenture (b) authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes. Each Holder hereof, by the acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Guarantor Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

All terms used in this Guarantee which are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.

 

B-2

IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.

Dated: [•], 20[•]

 

 

Bell Canada Global Note Certificate (2055-A), No. [•] – Notation of Guarantee

Exhibit 99.4

BELL CANADA

Company

and

BCE INC.

Guarantor

and

THE BANK OF NEW YORK MELLON

Trustee

 

SECOND SUPPLEMENTAL INDENTURE

Dated as of February 18, 2025

to

SUBORDINATED INDENTURE

Dated as of February 18, 2025

 

TABLE OF CONTENTS

PAGE

 

RECITALS OF THE COMPANY					1
RECITALS OF THE GUARANTOR					1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION					2
Section 101		Relation to Base Indenture			2
Section 102		Incorporation by Reference of Trust Indenture Act			2
Section 103		Trust Indenture Act to Control			2
Section 104		Definitions			2
ARTICLE TWO THE NOTES					8
Section 201		Designation; Aggregate Principal Amount			8
Section 202		Global Securities			8
Section 203		Guarantees			8
Section 204		Maturity; Place of Payment			8
Section 205		Interest			8
Section 206		Denomination			10
Section 207		Redemption			10
Section 208		No Sinking Fund			10
ARTICLE THREE DEFAULTS AND REMEDIES					11
Section 301		Events of Default			11
Section 302		Acceleration			12
ARTICLE FOUR OPTION TO DEFER INTEREST PAYMENTS					13
Section 401		Option to Defer Interest Payments			13
ARTICLE FIVE SUBORDINATION					15
Section 501		Subordination of Notes to Bell Canada Senior Debt			15
Section 502		Subordination of Guarantee to Guarantor Senior Debt			16
Section 503		Disputes with Holders of Certain Senior Indebtedness			16
Section 504		Subrogation			17
Section 505		Obligation of Company Unconditional			17
Section 506		Payments on Notes Permitted			18
Section 507		Effectuation of Subordination by Trustee			18
Section 508		Knowledge of Trustee			18
Section 509		Trustee May Hold Senior Indebtedness			18
Section 510		Rights of Holders of Senior Indebtedness Not Impaired			19
Section 511		Article Applicable to Paying Agents			19

 

i

Section 512		Trustee; Compensation Not Prejudiced			19
ARTICLE SIX MISCELLANEOUS					20
Section 601		Effect of Headings			20
Section 602		Successors and Assigns			20
Section 603		Separability Clause			20
Section 604		Governing Law			20
Section 605		U.S.A. PATRIOT Act			20
Section 606		FATCA			20
Section 607		Electronic Communications			21
Section 608		Funds Held by the Trustee			22
EXHIBIT A					A-1
EXHIBIT B					B-1

 

 

ii

SECOND SUPPLEMENTAL INDENTURE, dated as of February 18, 2025 (the “Second Supplemental Indenture”), among BELL CANADA, a corporation incorporated under the laws of Canada (the “Company”), BCE INC., a corporation incorporated under the laws of Canada (the “Guarantor”) and The Bank of New York Mellon, a New York banking corporation, as Trustee hereunder (the “Trustee”).

RECITALS OF THE COMPANY

The Company and the Guarantor have each heretofore executed and delivered to The Bank of New York Mellon, as trustee, a Subordinated Indenture, dated as of February 18, 2025 (the “Base Indenture,” as the same may be amended or supplemented from time to time, including by this Second Supplemental Indenture, the “Subordinated Indenture”), providing for the issuance from time to time of the Company’s subordinated debt securities to be issued in one or more series (herein and therein called the “Subordinated Debt Securities”) and the guarantee thereof by the Guarantor, in each case as described therein.

Sections 201, 301 and 901 of the Base Indenture permit the Company, the Guarantor and the Trustee to enter into an indenture supplemental to the Base Indenture to provide for the issuance of, and establish the form and terms of, additional series of Subordinated Debt Securities.

The Company has authorized the issuance of $1,250,000,000 in aggregate principal amount of its 7.000% Fixed-to-Fixed Rate Junior Subordinated Notes, Series B due 2055 (the “Notes”).

The Notes will be established as a series of Subordinated Debt Securities under the Subordinated Indenture.

All things necessary to make this Second Supplemental Indenture a valid agreement of the Company, in accordance with its terms, have been done.

RECITALS OF THE GUARANTOR

The Guarantor desires to make the Guarantee provided for herein.

All things necessary to make this Second Supplemental Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

 

1

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 101 Relation to Base Indenture.

This Second Supplemental Indenture constitutes a part of the Base Indenture (the provisions of which, as modified by this Second Supplemental Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any other series of Subordinated Debt Securities or affect in any manner the terms and conditions of the Subordinated Debt Securities of any other series.

Section 102 Incorporation by Reference of Trust Indenture Act.

The Subordinated Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the Subordinated Indenture. The following Trust Indenture Act terms have the following meanings:

“Indenture Securities” shall mean the Subordinated Debt Securities.

“Indenture to Be Qualified” shall mean the Subordinated Indenture.

“Indenture Trustee or Institutional Trustee” shall mean the Trustee.

“Obligor” with reference to Indenture Securities shall mean the Company.

All other terms in the Subordinated Indenture that are defined by the Trust Indenture Act, defined by it by reference to another statute or defined by Commission rule have the meanings assigned to them by such definitions.

Section 103 Trust Indenture Act to Control.

If any provision included in the Subordinated Indenture limits, qualifies or conflicts with another provision included in the Subordinated Indenture that is required to be included in the Subordinated Indenture by the Trust Indenture Act, such required provision shall control. If any provision of the Subordinated Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, that provision of the Trust Indenture Act shall be deemed to apply to the Subordinated Indenture as so modified or to be excluded, as the case may be.

Section 104 Definitions.

For all purposes of this Second Supplemental Indenture, the capitalized terms used herein that are defined in this Section 104 have the respective meanings assigned thereto in this Section 104, and the capitalized terms used herein that are defined in the Base Indenture and not defined in this Section 104 have the respective meanings assigned thereto in the Base Indenture. For all purposes of this Second Supplemental Indenture:

 

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(1) the terms defined in this Article One have the meanings assigned to them in this Article One, and include the plural as well as the singular;

(2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(3) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;

(4) all references to “dollars” and “$” shall mean U.S. dollars unless otherwise indicated; and

(5) for the avoidance of doubt, any reference to a facsimile signature shall include an image of a signature produced electronically.

“1996 Indenture Subordinated Debentures” means the subordinated debentures issued under the 1996 Subordinated Indenture.

“1996 Subordinated Indenture” means the indenture dated as of April 17, 1996 and indentures supplemental thereto executed by the Company in favour of Montreal Trust Company (the predecessor company of Computershare Trust Company of Canada), as trustee (as amended and supplemented from time to time in accordance with the terms thereof).

“Administrative Action” means any judicial decision, administrative pronouncement, published or private ruling, regulatory procedure, rule, notice, announcement, assessment or reassessment (including without limitation any notice or announcement of intent to adopt or issue such decision, pronouncement, ruling, procedure, rule, notice, announcement, assessment or reassessment).

“Additional Amounts” has the meaning ascribed to such term in the Base Indenture.

“Additional Notes” has the meaning ascribed to such term in Section 201.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Authorized Officers” has the meaning ascribed to such term in Section 607.

“Bell Canada Senior Debt” means the principal of, premium, if any, interest on and all other amounts in respect of: (i) indebtedness for borrowed money, other than indebtedness represented by the Notes, issued, assumed or guaranteed by the Company, including all present or future obligations of the Company under the 1996 Indenture Subordinated Debentures and the 1996 Subordinated Indenture, or for the deferred purchase price of property (including, without

 

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limitation, by means of debt instruments and finance leases and any liability evidenced by bonds, debentures, notes or similar instruments); (ii) all other liabilities of the Company created, incurred, assumed or guaranteed by the Company; and (iii) renewals, extensions or refunding of any indebtedness referred to in (i) or (ii) of this definition, except that the Bell Canada Senior Debt shall not include, in each case, indebtedness or other liabilities which by their terms rank in right of payment equally with or subordinate to the Notes (including Junior Parity Indebtedness).

“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the City of Montréal, City of New York or the City of Toronto are authorized or obligated by law or executive order to close.

“Calculation Agent” means any Person, which may be the Company or any of the Company’s Affiliates, appointed by the Company from time to time to act as calculation agent with respect to the Notes.

“Code” means the Internal Revenue Code of 1986, as amended.

“DBRS” means DBRS Limited, or its successor.

“Dividend Restricted Shares” means, (i) in respect of the Guarantor, collectively, the common shares and preferred shares in the capital of the Guarantor, and (ii) in respect of the Company, collectively, the common shares and preferred shares in the capital of the Company.

“DTC” means the Depository Trust Company or its nominee.

“Event of Default” has the meaning ascribed to such term in Section 301.

“Electronic Means” has the meaning ascribed to such term in Section 607.

“FATCA” has the meaning ascribed to such term in Section 606.

“First Reset Date” means September 15, 2035.

“Five-Year U.S. Treasury Rate” means, as of any Interest Reset Determination Date, as applicable, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published H.15, for the U.S. Treasury security with a maturity of five years from the next Interest Reset Date and trading in the public securities market or (2) if there is no such published U.S. Treasury security with a maturity of five years from the next Interest Reset Date and trading in the public securities market, the rate shall be determined by the Calculation Agent by interpolation or extrapolation on a straight line basis between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Interest Reset Date following the next succeeding Interest Reset Determination Date, and (B) the other maturing as close as possible to, but later than, the Interest Reset Date following the next succeeding Interest Reset Determination Date, in each case as published in the most recently published H.15. If the H.15 is no longer published or the Five-Year U.S. Treasury Rate cannot be determined pursuant to the methods described in clauses (1) or (2) above, then

 

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the Five-Year U.S. Treasury Rate shall be the Five-Year U.S. Treasury Rate in effect for the prior Subsequent Fixed Rate Period, or, in the case the First Reset Date, 4.485%.

“Global Securities” has the meaning ascribed to such term in Section 202.

“Guarantee” means the guarantee, on a junior subordinated basis, of the full and timely payment when due, whether at stated maturity, by required payment, acceleration, declaration, demand or otherwise, of all of the payment obligations of the Company under the Subordinated Indenture and the Notes.

“Guarantor Senior Debt” means the principal of, premium, if any, interest on and all other amounts in respect of: (i) indebtedness, for borrowed money, other than indebtedness represented by the Guarantee, issued, assumed or guaranteed by the Guarantor, including all present or future obligations of the Guarantor in respect of its guarantee of the Company’s obligations under the 1996 Indenture Subordinated Debentures and the 1996 Subordinated Indenture, or for the deferred purchase price of property (including, without limitation, by means of debt instruments and finance leases and any liability evidenced by bonds, debentures, notes or similar instruments); (ii) all other liabilities of the Guarantor created, incurred, assumed or guaranteed by the Guarantor; and (iii) renewals, extensions or refunding of any indebtedness referred to in (i) or (ii) of this definition, except that Guarantor Senior Debt shall not include, in each case, indebtedness or other liabilities which by their terms rank in right of payment equally with or subordinate to the Guarantee (including the Guarantor’s guarantee of the Company’s obligations under Junior Parity Indebtedness).

“H.15” means the daily statistical release designated as such, or any successor publication as determined by the Calculation Agent in its sole discretion, published by the Board of Governors of the United States Federal Reserve System, and “most recently published H.15” means the H.15 published closest in time but prior to the close of business on the applicable Interest Reset Determination Date.

“Holders” means the registered holders, from time to time, of the Notes or, where the context requires, all of such holders.

“Instructions” has the meaning ascribed to such term in Section 607.

“Interest Payment Date” means March 15 and September 15 of each year, commencing on September 15, 2025.

“Interest Reset Date” means the date falling on the fifth anniversary of the First Reset Date and each date falling on the fifth anniversary of the preceding Interest Reset Date.

“Interest Reset Determination Date” means, for any Subsequent Fixed Rate Period, the date that is one Business Day prior to the first day of such Subsequent Fixed Rate Period.

“Junior Parity Indebtedness” means (i) in respect of the Guarantor, any class or series of the Guarantor’s indebtedness currently outstanding or hereafter created which expressly ranks equally (pari passu) with the Guarantee, and (ii) in respect of the Company, any class or series of the Company’s indebtedness currently outstanding or hereafter created which expressly ranks

 

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equally (pari passu) with the Notes as to distributions upon liquidation, dissolution or winding-up.

“Maturity Date” means September 15, 2055.

“Moody’s” means Moody’s Investors Service, Inc., or its successor.

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Rating Agencies” means each of Moody’s, S&P and DBRS as long as, in each case, it has not ceased to rate such Notes or failed to make a rating of such Notes publicly available for reasons outside of the Company’s control; provided that if one or more of Moody’s, S&P or DBRS ceases to rate such Notes or fails to make a rating of such Notes publicly available for reasons outside of the Company’s control, the Company may select any other “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Securities Exchange Act of 1934, as amended, as a replacement agency for such one or more of them, as the case may be.

“Rating Event” means an amendment, clarification or change to the criteria that any Rating Agency uses to assign equity credit to securities such as the Notes following the initial rating of the Notes by such Rating Agency, which amendment, clarification or change results in (a) the shortening of the length of time the Notes are assigned a particular level of equity credit by that Rating Agency as compared to the length of time the Notes would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial rating of the Notes by such Rating Agency; or (b) the lowering of the equity credit (including up to a lesser amount) assigned to the Notes by that Rating Agency compared to the equity credit assigned by that Rating Agency or its predecessor on the initial rating of the Notes by such Rating Agency.

“Regular Record Date” has the meaning ascribed to such term in Section 205.

“Subsequent Fixed Rate Period” means the period from, and including, the First Reset Date to, but excluding, the next Interest Reset Date and each five-year period thereafter from, and including, the most recent Interest Reset Date to, but excluding, the next Interest Reset Date (or the Maturity Date or date of redemption, as applicable).

“Senior Creditor” means a holder or holders of Bell Canada Senior Debt and includes any representative or representatives or trustee or trustees of any such holder and such other lenders providing advances to the Company pursuant to Bell Canada Senior Debt.

“S&P” means S&P Global Ratings, a division of S&P Global Inc., or its successor.

“Tax Event” means the Company has received an opinion of independent counsel of a nationally recognized law firm in Canada or the United States experienced in such matters (who may be counsel to the Company) to the effect that, as a result of: (a) any amendment to, clarification of or change (including without limitation any announced prospective change) in the laws, or any regulations thereunder, or any application or interpretation thereof, of Canada or the United States, or any political subdivision or taxing authority thereof or therein, affecting

 

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taxation; any Administrative Action; or any amendment to, clarification of or change (including any announced prospective change) in the official position with respect to or the interpretation of any Administrative Action or any interpretation or pronouncement that provides for a position with respect to such Administrative Action that differs from the theretofore generally accepted position, in each case, by any legislative body, court, governmental authority or agency, regulatory body or taxing authority, irrespective of the manner in which such amendment, clarification, change, Administrative Action, interpretation or pronouncement is made known, which amendment, clarification, change or Administrative Action is effective or which interpretation, pronouncement or Administrative Action is announced on or after the date of the issue of the Notes, there is more than an insubstantial risk (assuming any proposed or announced amendment, clarification, change, interpretation, pronouncement or Administrative Action is effective and applicable) that the Company (i) is, or may be, subject to more than a de minimis amount of additional taxes, duties or other governmental charges or civil liabilities because the treatment of any of its items of income, taxable income, expense, deduction of expense, taxable capital or taxable paid-up capital with respect to the Notes (including without limitation the treatment by the Company of interest on the Notes and the deductibility of such interest), as or as would be reflected in any tax return or form filed, to be filed, or otherwise could have been filed, will not be respected by a taxing authority or (ii) is, or may be, obligated to pay, on the next Interest Payment Date for the Notes, Additional Amounts with respect to the Notes.

“Taxes” has the meaning ascribed to such term in the Base Indenture.

 

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ARTICLE TWO

THE NOTES

Section 201 Designation; Aggregate Principal Amount.

(a) The Notes shall be known and designated as the “7.000% Fixed-to-Fixed Rate Junior Subordinated Notes, Series B due 2055.”

(b) The aggregate principal amount of the Notes that may be authenticated and delivered under this Second Supplemental Indenture is limited to $1,250,000,000, as increased by the amount of any Additional Notes issued pursuant to this Second Supplemental Indenture, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes issued pursuant to Section 304, 305, 306, 906 or 1107 of the Base Indenture or Article Two of this Second Supplemental Indenture. The Company may, from time to time, without the consent of the Holders of the Notes, reopen the series constituting the Notes and issue additional Notes (the “Additional Notes”) having the same ranking and the same interest rate, maturity and other terms as the Notes, except for the public offering price, the issue date and, if applicable, the initial interest payment date and initial interest accrual date. Any such Additional Notes, together with the initial Notes, shall constitute a single series of Subordinated Debt Securities under the Base Indenture.

Section 202 Global Securities.

Upon original issuance, the Notes shall be represented by one or more global securities (the “Global Securities”) having an aggregate principal amount equal to that of the Notes represented thereby. Each Global Security shall be deposited with, or on behalf of, DTC, as depositary, and registered in the name of Cede & Co. (or such other nominee as may be designated by DTC), as nominee of DTC. The Global Securities shall bear legends regarding the restrictions on exchanges and registration of transfer thereof substantially in the form set out in Exhibit A hereto.

Section 203 Guarantees.

The Guarantees shall be substantially in the form set out in Exhibit B hereto.

Section 204 Maturity; Place of Payment.

The Stated Maturity of the Notes shall be September 15, 2055. The Place of Payment with respect to the Notes shall initially be the Corporate Trust Office of the Trustee.

Section 205 Interest.

(a) The Notes shall bear interest (i) from and including February 18, 2025, to but excluding the First Reset Date at an annual rate of 7.000% and thereafter (ii) from and including the First Reset Date and on every Interest Reset Date, with respect to each Subsequent Fixed Rate Period, to, but excluding, the next succeeding Interest Reset Date, the Maturity Date or the date of redemption, as the case may be, at an annual rate, to be reset on each Interest Reset Date, equal to the Five-Year U.S. Treasury Rate as of the most recent Interest Reset Determination Date, plus a spread of 2.363%; provided, that the interest rate during any Subsequent Fixed Rate Period will not reset below 7.000%.

 

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(b) Subject to the Company’s right to defer interest payments pursuant to Article Four of this Second Supplemental Indenture, interest on the Notes shall be payable semi-annually in arrears on each Interest Payment Date to the person in whose name such Note is registered at the close of business on each March 1 or September 1 (the “Regular Record Date”), as applicable, preceding such Interest Payment Date (whether or not a Business Day), provided that interest payable at maturity or on a redemption date shall be paid to the person to whom principal is payable.

(c) Unless all of the outstanding Notes have been redeemed as of the First Reset Date, the Company shall appoint the Calculation Agent with respect to the Notes prior to the Interest Reset Determination Date preceding the First Reset Date. The Company or any of its affiliates may be appointed as the Calculation Agent. The applicable interest rate for each Subsequent Fixed Rate Period shall be determined by the Calculation Agent as of the applicable Interest Reset Determination Date. If the Company or one of its affiliates is not the Calculation Agent, the Calculation Agent shall notify the Company of the interest rate for the relevant Subsequent Fixed Rate Period promptly upon such determination. the Company shall notify the Trustee of such interest rate, promptly upon making or being notified of such determination. The Calculation Agent’s determination of any interest rate and its calculation of the amount of interest for any Subsequent Fixed Rate Period beginning on or after the First Reset Date shall be conclusive and binding absent manifest error, shall be made in the Calculation Agent’s sole discretion and, notwithstanding anything to the contrary in the documentation relating to the Notes, shall become effective without consent from any other person or entity. Such determination of any interest rate and calculation of the amount of interest shall be on file at the Company’s principal offices and shall be made available to any Holder of the Notes upon request.

(d) Interest for each period between Interest Payment Dates shall be calculated on the basis of a 360-day year consisting of twelve 30-day months and, for any period shorter than six months, on the basis of the actual number of days elapsed per 30-day month. For the purposes of disclosure under the Interest Act (Canada), and without affecting the interest payable on the Notes, whenever the interest rate on the Notes is to be calculated on the basis of a period of less than a calendar year, the yearly interest rate equivalent for such interest rate will be the interest rate multiplied by the actual number of days in the relevant calendar year.

(e) The principal of, interest and premium (if any) on, and any redemption price of, the Notes shall be paid in lawful money of the United States.

(f) If an Interest Payment Date falls on a day that is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day, and no further interest shall accrue in respect of such postponement. In addition, if a redemption date or a Maturity Date of the Notes falls on a day that is not a Business Day, the payment of any amounts owing in respect of the Notes shall be made on the next succeeding Business Day and no interest on such

 

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payment shall accrue for the period from and after the redemption date or the Maturity Date, as applicable.

Section 206 Denomination.

The Notes shall be issued only in fully registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.

Section 207 Redemption.

(a) The Company shall be entitled, at its option, to redeem the Notes, in whole at any time or in part from time to time, by giving prior notice of not less than 10 days nor more than 60 days to the Holders of the Notes, and upon such conditions as may be specified in the applicable notice of redemption, at a redemption price equal to 100% of the principal amount thereof: (a) on any day in the period commencing on and including the date that is 90 days prior to the First Reset Date and ending on and including such First Reset Date; and (b) thereafter, on any applicable Interest Payment Date, in each case together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. Notes that are redeemed shall be cancelled and shall not be reissued.

(b) At any time on or within 90 days following the occurrence of a Tax Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Notes, redeem all (but not less than all) of the Notes at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. If there is a Tax Event on or after the date that is 90 days prior to the First Reset Date, the Company may elect an optional redemption of the Notes pursuant to Section 207(a) of this Second Supplemental Indenture rather than a redemption by way of the Tax Event optional redemption right.

(c) At any time on or within 90 days following the occurrence of a Rating Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Notes, redeem all (but not less than all) of the Notes at a redemption price equal to 102% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. If there is a Rating Event on or after the date that is 90 days prior to the First Reset Date, the Company may elect an optional redemption of the Notes pursuant to Section 207(a) of this Second Supplemental Indenture rather than a redemption by way of the Rating Event optional redemption right.

Section 208 No Sinking Fund.

The Company shall not be required to make sinking fund payments with respect to the Notes.

 

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ARTICLE THREE

DEFAULTS AND REMEDIES

Section 301 Events of Default.

Section 501 of the Base Indenture shall not apply to the Notes. An “Event of Default” in respect of the Notes shall occur only if the Company:

(a) defaults in the payment of any interest on the Notes when due and payable, and such default continues for a period of 90 days (subject to the Company’s right, at its option, to defer interest payments on the Notes pursuant to Article Four of this Second Supplemental Indenture);

(b) defaults in the payment of the principal amount of or the applicable redemption price of such Notes, as applicable, when due and payable, and such default continues for a period of five days;

(c) makes an assignment for the general benefit of creditors or is adjudicated insolvent or bankrupt, or has petitioned or has applied to any court having jurisdiction for the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or has commenced any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency reorganization, arrangement, or readjustment of Debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter called “Proceeding”); or there has been commenced against the Company any Proceeding and an order approving such Proceeding shall have been rendered, or such Proceeding shall have remained undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company shall have been appointed; or the Company shall have indicated consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company, provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another corporation or the transfer of its assets as a whole, or substantially as a whole, to such other corporation as provided in Section 801 of the Base Indenture shall not make the rights and remedies herein enforceable under this Clause if such last-mentioned corporation shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 801 of the Base Indenture; or

(d) defaults in the performance or observance of any covenant, agreement or condition of the Subordinated Indenture and such default continues for a period of 90 days after written notice has been given by (i) the Trustee to the Company specifying such default and requiring the Company to remedy the same or (ii) the Holders of not less than 25% in principal amount of the Notes at the time outstanding to the Company and the Trustee specifying such default.

 

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Section 302 Acceleration.

Section 502 of the Base Indenture shall apply to the Notes, except that the following sentence shall be inserted at the end of the first paragraph of such section:

Notwithstanding the forgoing, if an Event of Default specified in Section 301(d) occurs and is continuing, neither the Trustee nor the Holders of the Notes shall be entitled to declare the principal of the Notes, or accrued or unpaid interest thereon, to be due or payable immediately; provided that the Trustee and the Holders may exercise the other rights and remedies available under the Indenture and under applicable law upon the occurrence of an Event of Default specified in Section 301(d).

 

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ARTICLE FOUR

OPTION TO DEFER INTEREST PAYMENTS

Section 401 Option to Defer Interest Payments.

(a) So long as no Event of Default has occurred and is continuing, the Company may elect, at its option, on any date other than an Interest Payment Date, to defer the interest payable on the Notes on one or more occasions for for up to five consecutive years (each, a “Deferral Period”). There is no limit on the number of Deferral Periods that may occur. Such deferral shall not constitute an Event of Default or any other breach under the Subordinated Indenture or the Notes. Deferred interest shall accrue at the then-applicable interest rate for the Notes (as reset from time to time in accordance with the terms of the Notes), compounding on each applicable subsequent Interest Payment Date, until paid, to the extent permitted by applicable law. A Deferral Period with respect to the Notes terminates on any Interest Payment Date where the Company pays all accrued and unpaid interest (including deferred interest, as applicable) in respect of the Notes on such date. No Deferral Period may extend beyond the Maturity Date and, for greater certainty, all accrued and unpaid interest (including deferred interest, as applicable, to the extent permitted by law) in respect of the Notes shall be due and payable on the Maturity Date or any date fixed for redemption of the Notes, as applicable.

(b) Unless the Company has paid all interest that has been deferred or is then payable on the Notes, neither the Guarantor nor the Company shall:

(i) declare any dividend on the Dividend Restricted Shares or pay any interest on any Junior Parity Indebtedness;

(ii) redeem, purchase or otherwise retire any Dividend Restricted Shares or Junior Parity Indebtedness; or

(iii) make any payment to holders of, or in respect of, any of the Dividend Restricted Shares or any of the Junior Parity Indebtedness in respect of dividends not declared or paid on such Dividend Restricted Shares or interest not paid on such Junior Parity Indebtedness, respectively.

(c) Notwithstanding the forgoing provisions of Section 401(b), during a Deferral Period, the Company and the Guarantor may:

(i) declare and pay dividends or distributions payable solely in common shares in the capital of the Company or the Guarantor, together with cash in lieu of any fractional shares, or options, warrants or rights to subscribe for or purchase common shares in the capital of the Company or the Guarantor;

(ii) redeem, purchase or otherwise retire any Dividend Restricted Shares out of the net cash proceeds of a substantially concurrent issue of Dividend Restricted Shares;

 

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(iii) redeem, purchase or otherwise retire any Dividend Restricted Shares or rights to subscribe for Dividend Restricted Shares pursuant to any purchase obligation, sinking fund, retraction privilege or mandatory redemption provisions attaching to any series of Dividend Restricted Shares or such rights if under a shareholders rights plan;

(iv) reclassify the Company’s or the Guarantor’s Dividend Restricted Shares or exchange or convert Dividend Restricted Shares for another class or series of the Company’s or the Guarantor’s share capital;

(v) purchase fractional interests in Dividend Restricted Shares pursuant to the conversion or exchange provisions of such Dividend Restricted Shares or the security being converted or exchanged;

(vi) purchase, acquire or withhold Dividend Restricted Shares in connection with the issuance or delivery by the Company or the Guarantor of Dividend Restricted Shares under any dividend reinvestment plan or related to any employment contract, incentive plan, benefit plan or other similar arrangement for the Company’s or the Guarantor’s directors, officers, employees, consultants or advisors;

(vii) declare and pay any dividend on any Dividend Restricted Shares of the Company to the extent owned directly or indirectly by the Guarantor; or

(viii) redeem, purchase or otherwise retire any Dividend Restricted Shares of the Company to the extent owned directly or indirectly by the Guarantor.

(d) the Company shall give the Holders of the Notes written notice of its election to commence or continue a Deferral Period at least 10 and not more than 60 days before the next Interest Payment Date.

 

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ARTICLE FIVE

SUBORDINATION

Section 501 Subordination of Notes to Bell Canada Senior Debt.

(a) The Company covenants and agrees, and each Holder of the Notes, by the acceptance thereof, likewise covenants and agrees, that the indebtedness represented by the Notes and the payment of the principal of and premium, if any, and interest on each and all of the Notes is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all present and future Bell Canada Senior Debt. However, the Notes shall rank equally in right of payment with any Junior Parity Indebtedness of the Company.

(b) In the event (i) of any insolvency or bankruptcy proceedings or any receivership, liquidation, reorganization or other similar proceedings in respect of the Company or a substantial part of its property, or of any proceedings for liquidation, dissolution or other winding-up of the Company, whether or not involving insolvency or bankruptcy; or (ii) subject to Section 503 of this Second Supplemental Indenture, that: (1) a default has occurred with respect to the payment of principal of or interest on or other monetary amounts due and payable on any Bell Canada Senior Debt; or (2) there has occurred an event of default (other than a default in the payment of principal or interest or other monetary amounts due and payable) in respect of any Bell Canada Senior Debt, as defined in the instrument under which such Bell Canada Senior Debt is outstanding, permitting the holder or holders thereof to accelerate the maturity thereof (with notice or lapse of time, or both), and such event of default has continued beyond the period of grace, if any, in respect thereof, and, in the cases of paragraphs (1) and (2), such default or event of default has not been cured or waived or has not ceased to exist; or (3) that the principal of and accrued interest on the Notes has been declared due and payable pursuant to Section 502 of the Base Indenture and such declaration has not been rescinded and annulled as provided therein, then:

(i) the holders of all Bell Canada Senior Debt shall first be entitled to receive payment of the full amount due thereon, or provision shall be made for such payment in money or money’s worth, before the Holders of any of the Notes are entitled to receive a payment on account of the principal of or interest on the indebtedness evidenced by the Notes, including, without limitation, any payments made pursuant to any redemption or purchase for cancellation;

(ii) any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, to which the Holders of any of the Notes or the Trustee would be entitled except for the provisions of this Article Five shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receiver, receiver and manager or liquidating trustee or otherwise, directly to the holders of such Bell Canada Senior Debt or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Bell Canada Senior Debt may have been issued, ratably according to the aggregate amounts

 

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remaining unpaid on account of such Bell Canada Senior Debt held or represented by each, to the extent necessary to make payment in full of all Bell Canada Senior Debt remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Bell Canada Senior Debt, before any payment or distribution is made to the holders of the indebtedness evidenced by the Notes or to the Trustee under this instrument; and

(iii) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, in respect of principal of or interest on the Notes or in connection with any repurchase by the Company of the Notes, shall be received by the Trustee or the Holders of any of the Notes before all Bell Canada Senior Debt is paid in full, or provision made for such payment in money or money’s worth, such payment or distribution in respect of principal of or interest on the Notes or in connection with any repurchase by the Company of the Notes shall be paid over to the holders of such Bell Canada Senior Debt or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any such Bell Canada Senior Debt may have been issued, ratably as aforesaid, for application to the payment of all Bell Canada Senior Debt remaining unpaid until all such Bell Canada Senior Debt shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Bell Canada Senior Debt.

Section 502 Subordination of Guarantee to Guarantor Senior Debt.

The Guarantor covenants and agrees, and each Holder of the Notes, by the acceptance thereof, likewise covenants and agrees, that the that the payment under the Guarantee of the principal of and premium, if any, and interest, if any, on the Notes is hereby expressly subordinated, to the extent and in the manner set forth in the Guarantee, in right of payment to the prior payment in full of all present and future Guarantor Senior Debt. However, the Guarantee shall rank equally in right of payment with any Junior Parity Indebtedness of the Guarantor.

Section 503 Disputes with Holders of Certain Senior Indebtedness.

Any failure by the Company to make any payment on or perform any other obligation under Bell Canada Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of this Section shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default under 501(b)(2) if (a) the Company shall be disputing its obligation to make such payment or perform such obligation and (b) either (i) no final judgment relating to such dispute shall have been issued against the Company which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, and (ii) in the event of a judgment that is subject to

 

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further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.

Section 504 Subrogation.

Subject to the payment in full of all Bell Canada Senior Debt, the Holders of the Notes shall be subrogated (equally and ratably with the holders of all obligations of the Company which by their express terms are subordinated to Bell Canada Senior Debt of the Company to the same extent as the Notes are subordinated and which are entitled to like rights of subrogation) to the rights of the holders of Bell Canada Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to the Bell Canada Senior Debt until all amounts owing on the Notes shall be paid in full, and as between the Company, its creditors other than holders of such Bell Canada Senior Debt and the Holders, no such payment or distribution made to the holders of Bell Canada Senior Debt by virtue of this Article Five that otherwise would have been made to the Holders shall be deemed to be a payment by the Company on account of such Bell Canada Senior Debt, it being understood that the provisions of this Article Five are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Bell Canada Senior Debt, on the other hand.

Section 505 Obligation of Company Unconditional.

(a) Nothing contained in this Article Five or elsewhere in the Subordinated Indenture or in the Notes is intended to or shall impair, as among the Company, its creditors other than the holders of Bell Canada Senior Debt and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of and premium, if any, and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than the holders of Bell Canada Senior Debt, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon default under the Subordinated Indenture, subject to the rights, if any, under this Article Five of the holders of Bell Canada Senior Debt in respect of cash, property or securities of the Company received upon the exercise of any such remedy.

(b) Upon payment or distribution of assets of the Company referred to in this Article Five, the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, receiver and manager, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of the Bell Canada Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount paid or distributed thereon and all other facts pertinent thereto or to this Article Five.

 

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Section 506 Payments on Notes Permitted.

Nothing contained in this Article Five or elsewhere in the Subordinated Indenture or in the Notes shall affect the obligations of the Company to make, or prevent the Company from making, payment of the principal of and premium, if any, or interest on the Notes in accordance with the provisions hereof and thereof, except as otherwise provided in this Article Five.

Section 507 Effectuation of Subordination by Trustee.

Each Holder by its acceptance thereof authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to effect the subordination as provided in this Article Five and appoints the Trustee as its attorney-in-fact for any and all such purposes. This appointment shall be irrevocable. Upon request of the Company, and upon being furnished a certificate of the Company stating that one or more named Persons are Senior Creditors and specifying the amount and nature of the Bell Canada Senior Debt of such Senior Creditor, the Trustee shall enter into a written agreement or agreements with the Company and the Persons named in such certificate of the Company providing that such Persons are entitled to all the rights and benefits of this Article Five as Senior Creditors and for such other matters, such as an agreement not to amend the provisions of this Article Five and the definitions used herein without the consent of such Senior Creditors, as the Senior Creditors may reasonably request. Such agreement shall be conclusive evidence that the indebtedness specified therein is Bell Canada Senior Debt; however, nothing herein shall impair the rights of any Senior Creditor who has not entered into such an agreement.

Section 508 Knowledge of Trustee.

Notwithstanding the provisions of this Article Five or any other provisions of the Subordinated Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of moneys to or by the Trustee, or the taking of any other action by the Trustee, unless and until the Trustee shall have received written notice thereof mailed or delivered to the Trustee from the Company, any Holder, any paying agent or the holder or representative of any class of Bell Canada Senior Debt; provided that if at least three Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Note) the Trustee shall not have received with respect to such moneys the notice provided for in this Section, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within three Business Days prior to or on or after such date.

Section 509 Trustee May Hold Senior Indebtedness.

The Trustee shall be entitled to all the rights set forth in this Article Five with respect to any Bell Canada Senior Debt at the time held by it, to the same extent as any other holder of Bell Canada Senior Debt, and nothing in the Subordinated Indenture shall deprive the Trustee of any of its rights as such holder.

 

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Section 510 Rights of Holders of Senior Indebtedness Not Impaired.

(a) No right of any present or future holder of any Bell Canada Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of the Subordinated Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.

(b) With respect to the holders of Bell Canada Senior Debt, (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of the Subordinated Indenture, (ii) the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Subordinated Indenture, (iii) no implied covenants or obligations shall be read into the Subordinated Indenture against the Trustee and (iv) the Trustee shall not be deemed to be a fiduciary as to such holders.

Section 511 Article Applicable to Paying Agents.

In case at any time any paying agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article Five shall in such case (unless the context shall require otherwise) be construed as extending to and including such paying agent within its meaning as fully for all intents and purposes as if such paying agent were named in this Article Five in addition to or in place of the Trustee; provided, however, that Sections 508 and 509 of this Second Supplemental Indenture shall not apply to the Company if it acts as its own paying agent.

Section 512 Trustee; Compensation Not Prejudiced.

Nothing in this Article Five shall apply to claims of, or payments to, the Trustee pursuant to Section 607 of the Base Indenture.

 

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ARTICLE SIX

MISCELLANEOUS

Section 601 Effect of Headings.

The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 602 Successors and Assigns.

All covenants and agreements in this Second Supplemental Indenture by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.

Section 603 Separability Clause.

In case any provision in this Second Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 604 Governing Law.

This Second Supplemental Indenture, the Notes and the Guarantees shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination provisions in Article Five hereof, which shall be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein.

Section 605 U.S.A. PATRIOT Act.

The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Second Supplemental Indenture agree that they shall provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.

Section 606 FATCA.

The Paying Agent and the Trustee shall be entitled to deduct or withhold from payments under this Second Supplemental Indenture to the extent necessary to comply with an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof (“FATCA”). The Company hereby covenants that it shall provide the Trustee and Paying Agent with sufficient information (but only to the extent that the Company has knowledge of such information) so as to enable the Trustee and Paying Agent to determine whether or not each of the Trustee and Paying Agent, respectively, is obliged, in respect of any payments to be made by it pursuant to this Second Supplemental Indenture, to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code, or otherwise imposed pursuant to Section 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).

 

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Section 607 Electronic Communications.

The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Second Supplemental Indenture and the Base Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and, if the Trustee believes in good faith that such Instructions are genuine and from the person purporting to be the sender of such Instructions, that the Trustee shall have the right to conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction, unless such losses, costs or expenses were caused by the Trustee’s gross negligence, bad faith, fraud or willful misconduct. The Company agrees: (i) subject to the immediately preceding sentence, to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any material compromise or unauthorized use of the security procedures to be followed in connection with its transmission of Instructions.

“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

 

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Section 608 Funds Held by the Trustee.

Funds held by the Trustee are to be held uninvested unless otherwise agreed in writing; provided that no such written agreement shall be required with respect to U.S. Government Obligations deposited with the Trustee in accordance with Article Fourteen of the Base Indenture.

* * * * *

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. As provided in the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), this instrument may be executed by facsimile signature or other electronic signature complying with such Act.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first above written.

 

 

 

Bell Canada Supplemental Indenture to Subordinated Indenture (2055-B Notes)

 

Bell Canada Supplemental Indenture to Subordinated Indenture (2055-B Notes)

EXHIBIT A

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

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BELL CANADA

7.000% Fixed-to-Fixed Rate Junior Subordinated Notes, Series B due 2055

 

No. [•]		$[•]
CUSIP No.:0778FPAQ2
ISIN No.:US0778FPAQ20

Bell Canada, a corporation duly organized and existing under the laws of Canada (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [•] MILLION United States Dollars ($[•]) on September 15, 2055 (the “Maturity Date”), and, subject to the Company’s right to defer interest payments as set forth in the Supplemental Indenture (as defined on the reverse hereof), to pay interest thereon (i) from and including February 18, 2025, to but excluding the First Reset Date at an annual rate of 7.000% and thereafter (ii) from and including the First Reset Date and on every Interest Reset Date, with respect to each Subsequent Fixed Rate Period, to, but excluding, the next succeeding Interest Reset Date, the Maturity Date or the date of redemption, as the case may be, at an annual rate, to be reset on each Interest Reset Date, equal to the Five-Year U.S. Treasury Rate as of the most recent Interest Reset Determination Date, plus a spread of 2.363% provided, that the interest rate during any Subsequent Fixed Rate Period will not reset below 7.000%, semi-annually on March 15 and September 15 in each year (each, an “Interest Payment Date”), commencing September 15, 2025 until the principal hereof is paid or made available for payment. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 1 or September 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may, at the Company’s election, either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner deemed appropriate by the Trustee not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

If any scheduled Interest Payment Date is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day, but interest on that payment shall not accrue during the period from and after the scheduled Interest Payment Date unless there is a default in the payment of the interest. If the Maturity Date or date of redemption or repayment is not a Business Day, the payment of interest and principal and/or any amount payable upon redemption or repayment of the Securities shall be made on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after such Maturity Date or date of redemption or repayment unless there is a default in the payment of the principal.

Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company or its nominee maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

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Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature (or, solely in the case of a Global Security, facsimile or electronic signature), this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

The following is only applicable to a Holder that is a resident of Canada and purchased this Security pursuant to a prospectus exemption under applicable Canadian securities laws: Unless permitted under securities legislation, such Holder must not trade this Security to or for the benefit of a Canadian purchaser before the date that is four months and a day after the distribution date of this Security.

Unless otherwise specifically stated, all dollar amounts in this Security are expressed in U.S. dollars.

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

Dated: [•], 20[•]

 

Bell Canada Global Note Certificate (2055-B), No. [•]

 

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This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

Dated: [•], 20[•]

 

Bell Canada Global Note Certificate (2055-B), No. [•]

 

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REVERSE OF SECURITY

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of February 18, 2025 (the “Base Indenture”), as amended by the Second Supplemental Indenture, dated as of February 18, 2025 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, BCE Inc., as Guarantor (herein called the “Guarantor”, which term includes any successor Person under the Indenture) and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $1,250,000,000.

The Company shall be entitled, at its option, to redeem the Securities, in whole at any time or in part from time to time, by giving prior notice of not less than 10 days nor more than 60 days to the Holders of the Securities, and upon such conditions as may be specified in the applicable notice of redemption, at a redemption price equal to 100% of the principal amount thereof: (a) on any day in the period commencing on and including the date that is 90 days prior to the First Reset Date and ending on and including such First Reset Date; and (b) thereafter, on any applicable Interest Payment Date, in each case together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.

At any time on or within 90 days following the occurrence of a Tax Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Securities, redeem all (but not less than all) of the Securities at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption.

At any time on or within 90 days following the occurrence of a Rating Event, the Company may, at its option, by giving not less than 10 days’ nor more than 60 days’ prior notice to the Holders of the Securities, redeem all (but not less than all) of the Securities at a redemption price equal to 102% of the principal amount thereof, together with accrued and unpaid interest (including deferred interest, as applicable) to, but excluding, the date fixed for redemption. In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

The indebtedness of the Company evidenced by this Note, including the principal hereof and premium (if any) and interest hereon, is, to the extent and in the manner set forth in the Indenture, subordinate and junior in right of payment to the Company’s obligations to holders all present and future Bell Canada Senior Debt and each Holder of this Note, by acceptance hereof, agrees to and shall be bound by such subordination provisions of the Indenture and all other provisions of the Indenture.

The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions

 

A-6

permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company or the Guarantor, or both, with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity against costs, expenses and other liabilities of instituting such proceeding, and the Trustee shall not have received during such 60 day period from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and the Trustee shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

 

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All terms used in this Security which are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.

 

A-8

EXHIBIT B

Guarantee

For value received, the Guarantor (which term includes any successor Person under the Indenture), hereby fully and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee referred to in such Indenture due and prompt payment of the principal of (and premium, if any) and interest on such Security (the “Guaranteed Obligations”) when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein (the “Guarantee”). In case of the failure of the Company (which term includes any successor Person under the Indenture) punctually to make any such payment of Guaranteed Obligations, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of amalgamation, merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal of (and premium, if any) and interest on such Security. This Guarantee shall constitute a guarantee of payment and not of collection.

Subject to the provisions with respect to the subordination of this Guarantee to other obligations of the Guarantor as described below, this Guarantee shall not be impaired by any modification, supplement, extension or amendment of any contract or agreement to which the parties thereto may hereafter agree, nor by any modification, release or other alteration of any of the Guaranteed Obligations or of any security therefore to which the parties thereto may hereafter agree, nor by any agreements or arrangements whatever with the Company or anyone else. The liability of the Guarantor hereunder is direct and unconditional and may be enforced without requiring the Trustee first to resort to any other right or security. The obligation of the Guarantor hereunder shall be irrevocable and unconditional irrespective of, shall not be affected or limited by, and shall not be subject to any defense, set-off, counterclaim or termination by reason of: (i) the legality, genuineness, validity, regularity or enforceability of this Guarantee or the liabilities of the Company guaranteed hereby; (ii) any provision of applicable law or regulation prohibiting the payment by the Company of the Guaranteed Obligations; or (iii) any other fact or circumstance which might otherwise constitute a defense to a guarantee, including without limitation, any failure to perfect or continue the perfection of any security interest securing all or any part of the Guaranteed Obligations, the invalidity or unenforceability of any of the Guaranteed Obligations, or the release of any party guaranteeing all or a portion of the Guaranteed Obligations. The Guarantor confirms that in executing and delivering this Guarantee it has not relied on any representation,

 

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warranty or other statement or agreement by the Trustee. All recourses of the Trustee hereunder shall be exercised in accordance with its powers under the Indenture.

The obligations of the Guarantor to which this Guarantee is subordinated as described below shall not be deemed to have been paid in full unless the Holders thereof shall have received cash (or securities or other property satisfactory to such Holders) in full payment of such obligations of the Guarantor then outstanding. Upon the payment in full of all such obligations of the Guarantor, the Guarantor shall be subrogated to all rights of the Holder of such Security against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any) and interest on all Securities of the same series issued under such Indenture shall have been paid in full.

The obligations evidenced by this Guarantee are, to the extent provided in the Indenture, subordinated and subject in right of payment to the prior payment in full of all present and future Guarantor Senior Debt (as defined in the Indenture), and this Guarantee is issued subject to the provisions of the Indenture with respect thereto. Each Holder of a Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such subordination provisions of the Indenture and all other provisions of the Indenture (b) authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c) appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes. Each Holder hereof, by the acceptance hereof, hereby waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Guarantor Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such Holder upon said provisions.

All terms used in this Guarantee which are defined in the Indenture and not defined herein shall have the meanings assigned to them in the Indenture.

 

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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.

Dated: [•], 20[•]

 

Bell Canada Global Note Certificate (2055-B), No. [•] – Notation of Guarantee

Exhibit 99.5

[Letterhead of Sullivan & Cromwell LLP]

 

February 18, 2025    

Bell Canada, and

BCE Inc.,

 1, Carrefour Alexander-Graham-Bell,

    Building A, 7th Floor,

    Verdun, Québec,

     Canada H3E 3B3.

Ladies and Gentlemen:

We have acted as United States counsel to Bell Canada and BCE Inc. (collectively, the “Co-Registrants”) in connection with the registration, under the Securities Act of 1933 (the “Act”), of 6.875% Fixed-to-Fixed Rate Junior Subordinated Notes, Series A due 2055 (the “2055-A Notes”) and 7.000% Fixed-to-Fixed Rate Junior Subordinated Notes, Series B due 2055 (the “2055-B Notes” and, collectively with the 2055-A Notes, the “Notes”) guaranteed by BCE Inc., as described in the Prospectus Supplement, dated February 12, 2025 (the “Prospectus Supplement”), to the Prospectus, dated February 6, 2025, contained in the Co-Registrants’ Registration Statement on Form F-10, File Nos. 333-284730-01 and 333-284730. We hereby confirm that our opinion is as set forth under the heading “Material United States Federal Income Tax Consequences” contained in the Prospectus Supplement, subject to the limitations and qualifications set forth therein.

We hereby consent to the filing with the Securities and Exchange Commission of this letter as an exhibit to a Form 6-K of BCE Inc. and to any reference to us under the heading “Material United States Federal Income Tax Consequences” in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.