BNY TRUST COMPANY OF CANADA in its capacity as trustee of SUMMIT TRUST - and - COMPUTERSHARE TRUST COMPANY OF CANADA Made as of the 15 th day of October, 2007 AMENDED AND RESTATED SERIES A NOTES SUPPLEMENT to the trust indenture between the parties hereto made as of April 9, 1998 Davies Ward Phillips & Vineberg LLP
- 2 - AMENDED AND RESTATED SERIES A NOTES SUPPLEMENT THIS AGREEMENT made as of the 15 th day of October, 2007. B E T W E E N: BNY TRUST COMPANY OF CANADA, a trust company incorporated pursuant to the laws of Canada and registered to carry on the business of a trust company in each of the provinces of Canada, in its capacity as trustee of SUMMIT TRUST, a trust established under the laws of the Province of Ontario, (in such capacity, hereinafter referred to as the "Trust"), - and - COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company incorporated pursuant to the laws of Canada and registered to carry on the business of a trust company in each of the provinces of Canada, (hereinafter referred to as the "Indenture Trustee"). WHEREAS pursuant to the terms of a trust indenture made as of April 9, 1998 between the Trust and the Indenture Trustee (as amended and supplemented from time to time, the "Indenture") the Trust and the Indenture Trustee have agreed to allocate the Trust Fund (including the income and proceeds therefrom) to the Secured Property securing the Trust's obligations in favour of holders of Trust Indebtedness of different Series and Classes in the manner therein provided and for the purposes therein described and to further specify such allocations in Supplements; AND WHEREAS pursuant to the original Series A Notes Supplement made as of April 9, 1998 (as amended from time to time, the "Original Supplement"), the terms of the Series A Notes were established and the Trustee and the Indenture Trustee allocated the portion of the Trust Fund designated therein to the Secured Property standing as security exclusively for the Series A Notes and in respect of which recourse for payment and other obligations under the Series A Notes is limited; AND WHEREAS the Trust and the Indenture Trustee have agreed to amend and restate the Original Supplement on the terms set out herein;
- 3 - NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and the covenants and agreements of the parties herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties hereby covenant and agree as follows: 1.1 Definitions ARTICLE 1 INTERPRETATION In this Amended and Restated Series A Notes Supplement, unless the context otherwise requires, the following words and phrases shall have the following meanings, respectively: (a) (b) (c) (d) (e) "Issuing Agent" means the "Agent" as defined in the Note Issuance Agreement; "Liquidity Agreement" means the amended and restated liquidity agreement dated as of October 15, 2007 between the Trust, Bank of Montreal, as Liquidity Agent and Lender, and the other banks and financial institutions listed on Schedule 1 to the liquidity agreement, pursuant to which the Trust obtains, upon the terms and conditions set out in such agreement, a commitment or commitments from one or more banks or financial institutions to purchase Series A Notes in an amount at least equal to the aggregate outstanding amount of Series A Notes issued by the Trust from time to time; as such liquidity agreement may be amended, restated, revised or varied from time to time; "Note Issuance Agreement" means an agreement substantially in the form of Schedule B as any such agreement may be amended, restated, revised or varied from time to time; "Series A Notes Collection Account" means an account at Bank of Montreal meeting the requirements of the Indenture and bearing account number [Intentionally Deleted] and transit number [Intentionally Deleted]; and "Series A Notes Liquidation Account" means an account at Bank of Montreal meeting the requirements of the Indenture and bearing account number [Intentionally Deleted] and transit number [Intentionally Deleted]. 1.2 Interpretation Provisions in Indenture This Amended and Restated Series A Notes Supplement shall, unless the context otherwise requires, be subject to the interpretation provisions contained in Article 1 of the Indenture.
- 4-1.3 Terms Defined in Indenture All capitalized terms used herein and not otherwise defined herein shall, unless the context otherwise requires, have the meanings ascribed to them, respectively, in the Indenture. 1.4 Conflict Between Amended and Restated Series A Notes Supplement and Indenture In the event that a term or provision contained herein shall conflict with or be inconsistent with any term or provision of the Indenture, the terms and provisions of this Amended and Restated Series A Notes Supplement shall govern. 1.5 Amendment and Restatement This Amended and Restated Series A Notes Supplement amends and restates in full and supercedes the Original Supplement, and it is hereby confirmed by the parties hereto that all prior actions of the parties made pursuant to the Original Supplement are effective as if made hereunder. 1.6 Schedules The following schedules annexed hereto are incorporated herein by reference and deemed to be a part hereof: Schedule A - Form of Canadian Dollar Series A Note Schedule B - Form of Note Issuance Agreement Schedule C - 2.1 Designation List of Additional Secured Property Allocated to the Series A Notes ARTICLE 2 CREATION OF THE SERIES A NOTES (a) Pursuant to Section 2.3 of the Indenture there is hereby created a Series of Notes to be issued pursuant to the Indenture and this Amended and Restated Series A Notes Supplement and to be known as "Summit Trust Series A Notes" (the "Series A Notes"). The Series A Notes shall be issued in a single Class. The Series A Notes may be in bearer or registered form or may be issued as Book-Based Certificates in accordance with Section 2.15 of the Indenture in accordance with the requirements of any applicable Clearing Agency. The Series A Notes may be issued from time to time in Canadian dollars or United States dollars in an unlimited principal amount as determined by the Trust or the Securitization Agent on behalf of the Trust from time to time. (b) The Series A Notes shall be dated the date of issue thereof; shall be substantially in the form set out in Schedule A; shall bear such distinguishing letters and numbers as the
- 5 - Indenture Trustee shall approve, such approval to be conclusively evidenced by its certification of the Series A Notes; shall be payable at the places specified in the Note Issuance Agreement; shall be Discount Notes that are issued at a discount at such rates or amounts as the Issuer Trustee or the Securitization Agent may instruct the Issuing Agent from time to time in accordance with the Note Issuance Agreement; shall be issued in integrals of $1,000, subject to a minimum principal amount of $50,000, and shall mature on the date or dates as the Issuer Trustee or the Securitization Agent may instruct the Issuing Agent from time to time in accordance with the Note Issuance Agreement; provided that no maturity date shall exceed the lesser of (i) 364 days and (ii) the applicable scheduled expiry date determined pursuant to Section 2.3 of the Liquidity Agreement; and shall be in the English language or in both the English and French languages. 3.1 Conditions to Issuance ARTICLE 3 CONDITIONS TO ISSUANCE Prior to the issuance of any Series A Notes the Trust shall have complied with the conditions specified in Section 2.4 and 2.5 of the Indenture and with the following: (a) (b) (c) (d) the Trust shall have delivered to the Indenture Trustee a certified copy of the Liquidity Agreement duly executed and delivered by each of the parties thereto, which Liquidity Agreement shall be applicable to all of the Series A Notes issued and outstanding from time to time in accordance with the terms of the Liquidity Agreement; the Trust shall have ensured that the Lenders' Commitment (under and as defined in the relevant Liquidity Agreement) shall, so long as there is any holder of the Series A Notes other than a Liquidity Provider under the Liquidity Agreement, be sufficient to retire the face amount of all of the Series A Notes outstanding from time to time; the Trust shall have delivered to the Indenture Trustee a certified copy of the Note Issuance Agreement duly executed and delivered by each of the parties thereto; and the Trust shall have delivered to the Indenture Trustee certified copies of all Securitization Agreements and Credit Enhancements which form part of the Trust Fund allocated to stand as security for the Series A Notes. ARTICLE 4 SECURITY AND RECOURSE ALLOCATION 4.1 Security and Recourse Allocation The Series A Notes issued and outstanding from time to time hereunder shall have, to the exclusion of the Holders of any other Trust Indebtedness issued under the Indenture, the equal and rateable benefit of the following Secured Property (which shall form part of the
- 6 - Trust Fund), and recourse of the Indenture Trustee and Holders of Series A Notes for payment and all other obligations under the Series A Notes shall be limited equally and rateably to the following Secured Property: (a) (b) (c) (d) (e) (f) all of the Trust's right, title and interest in, to and under each of the Securitization Agreements and Credit Enhancements set out from time to time on Schedule C to this Amended and Restated Series A Notes Supplement; all of the Trust's right, title and interest in, to and under any other agreement instrument or document pursuant to which the Holders of the Series A Notes are entitled to any rights or benefits, including any other Trust Agreement, in each case, subject to the terms of any such agreement, document or instrument, including the terms of any other Trust Agreement; all of the Trust's right, title and interest in, to and under any and all of the Securitized Assets purchased by the Trust pursuant to each of the Securitization Agreements set out from time to time on Schedule C to this Amended and Restated Series A Notes Supplement, including all Collections under, and as defined in, the applicable Securitization Agreement in respect of such Securitized Assets; all monies from time to time on deposit in each of the following accounts, to the extent of the Trust's interest therein or entitlement thereto: the Series A Notes Collection Account, the Series A Notes Liquidation Account and any other account that the Trust has any right or benefit in favour of the Holders of Series A Notes, including under any of the Securitization Agreements or Credit Enhancements set out from time to time on Schedule C to this Amended and Restated Series A Notes Supplement or as specifically set out from time to time on Schedule C to this Amended and Restated Series A Notes Supplement; all Eligible Investments purchased with funds which have accumulated to the order or for the benefit of the Trust in any such accounts; and all of the proceeds of any of the foregoing. ARTICLE 5 REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT 5.1 Representations, Warranties, Covenants and Events of Default The Series A Notes shall be entitled to the benefits of and subject to the terms of the Indenture and there shall be no additional representations, warranties, covenants or Events of Default applicable to the Series A Notes other than those contained in the Indenture.
- 7-6.1 Ratification of Indenture ARTICLE 6 MISCELLANEOUS PROVISIONS As supplemented by this Amended and Restated Series A Notes Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Amended and Restated Series A Notes Supplement shall be read, taken and construed as one and the same instrument. 6.2 Counterparts This Amended and Restated Series A Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF the parties have caused this Amended and Restated Series A Notes Supplement to be duly executed by their respective authorized officers as of the day and year first above written. BNY TRUST COMPANY OF CANADA, in its capacity as trustee of SUMMIT TRUST by [Authorized Signatory] Name: Title: COMPUTERSHARE TRUST COMPANY OF CANADA by by [Authorized Signatory] Name: Title: [Authorized Signatory] Name: Title:
SCHEDULE A FORM OF CANADIAN DOLLAR SERIES A NOTE
- 9 - SCHEDULE B FORM OF NOTE ISSUANCE AGREEMENT
SCHEDULE "C" ADDITIONAL SECURED PROPERTY ALLOCATED TO SERIES A NOTES