EXHIBIT 7.1
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PARAMOUNT RESOURCES LTD.
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INDENTURE
Dated as of June [ ], 2004
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The Bank of Nova Scotia
Trust Company of New York
Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. DEFINITIONS..............................................1
Section 1.2. OTHER DEFINITIONS........................................8
Section 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT........8
Section 1.4. RULES OF CONSTRUCTION....................................8
ARTICLE II
THE SECURITIES
Section 2.1. ISSUABLE IN SERIES.......................................9
Section 2.2. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES...........9
Section 2.3. EXECUTION AND AUTHENTICATION............................12
Section 2.4. REGISTRAR AND PAYING AGENT..............................12
Section 2.5. PAYING AGENT TO HOLD MONEY IN TRUST.....................13
Section 2.6. SECURITYHOLDER LISTS....................................13
Section 2.7. TRANSFER AND EXCHANGE...................................13
Section 2.8. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES........14
Section 2.9. OUTSTANDING SECURITIES..................................14
Section 2.10. TREASURY SECURITIES.....................................15
Section 2.11. TEMPORARY SECURITIES....................................15
Section 2.12. CANCELLATION............................................16
Section 2.13. DEFAULTED INTEREST......................................16
Section 2.14. GLOBAL SECURITIES.......................................16
Section 2.15. CUSIP NUMBERS...........................................18
ARTICLE III
REDEMPTION
Section 3.1. NOTICE TO TRUSTEE.......................................18
Section 3.2. SELECTION OF SECURITIES TO BE REDEEMED..................18
Section 3.3. NOTICE OF REDEMPTION....................................19
Section 3.4. EFFECT OF NOTICE OF REDEMPTION..........................20
Section 3.5. DEPOSIT OF REDEMPTION PRICE.............................20
Section 3.6. SECURITIES REDEEMED IN PART.............................20
Section 3.7. TAX REDEMPTION..........................................20
ARTICLE IV
COVENANTS
Section 4.1. PAYMENT OF PRINCIPAL AND INTEREST.......................21
Section 4.2. REPORTS.................................................21
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Section 4.3. COMPLIANCE CERTIFICATE..................................22
Section 4.4. STAY, EXTENSION AND USURY LAWS..........................22
Section 4.5. CORPORATE EXISTENCE.....................................23
Section 4.6. TAXES...................................................23
Section 4.7. PAYMENT OF ADDITIONAL AMOUNTS...........................23
ARTICLE V
SUCCESSORS
Section 5.1. WHEN COMPANY MAY MERGE, ETC.............................25
Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED.......................26
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.......................................27
Section 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT......28
Section 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.........................................29
Section 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM........................29
Section 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.........................................29
Section 6.6. APPLICATION OF MONEY COLLECTED..........................30
Section 6.7. LIMITATION ON SUITS.....................................30
Section 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.......................................31
Section 6.9. RESTORATION OF RIGHTS AND REMEDIES......................31
Section 6.10. RIGHTS AND REMEDIES CUMULATIVE..........................31
Section 6.11. DELAY OR OMISSION NOT WAIVER............................31
Section 6.12. CONTROL BY HOLDERS......................................32
Section 6.13. WAIVER OF PAST DEFAULTS.................................32
Section 6.14. UNDERTAKING FOR COSTS...................................32
ARTICLE VII
TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.......................................33
Section 7.2. RIGHTS OF TRUSTEE.......................................34
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE............................35
Section 7.4. TRUSTEE'S DISCLAIMER....................................35
Section 7.5. NOTICE OF DEFAULTS......................................35
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS...........................35
Section 7.7. COMPENSATION AND INDEMNITY..............................36
Section 7.8. REPLACEMENT OF TRUSTEE..................................37
Section 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC........................38
Section 7.10. ELIGIBILITY; DISQUALIFICATION...........................38
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......38
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ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. SATISFACTION AND DISCHARGE OF INDENTURE.................38
Section 8.2. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.............39
Section 8.3. LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES............40
Section 8.4. COVENANT DEFEASANCE.....................................40
Section 8.5. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE..............41
Section 8.6. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS...........42
Section 8.7. REPAYMENT TO COMPANY....................................43
Section 8.8. REINSTATEMENT...........................................43
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1. WITHOUT CONSENT OF HOLDERS..............................44
Section 9.2. WITH CONSENT OF HOLDERS.................................44
Section 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.....................46
Section 9.4. REVOCATION AND EFFECT OF CONSENTS.......................46
Section 9.5. NOTATION ON OR EXCHANGE OF SECURITIES...................46
Section 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.........................46
ARTICLE X
MISCELLANEOUS
Section 10.1. TRUST INDENTURE ACT CONTROLS............................47
Section 10.2. NOTICES.................................................47
Section 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.............48
Section 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT......48
Section 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION...........49
Section 10.6. RULES BY TRUSTEE AND AGENTS.............................49
Section 10.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.........................49
Section 10.8. COUNTERPARTS............................................50
Section 10.9. GOVERNING LAWS..........................................50
Section 10.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS...........50
Section 10.11. SUCCESSORS..............................................50
Section 10.12. SEVERABILITY............................................50
Section 10.13. TABLE OF CONTENTS, HEADINGS, ETC........................50
Section 10.14. CONSENT TO JURISDICTION.................................50
ARTICLE XI
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE................................51
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...51
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND...............52
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Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of June [ ], 2004
ss.310(a)(1) ........................................... 7.10
(a)(2) ........................................... 7.10
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(a)(5) ........................................... 7.10
(b) ........................................... 7.10
ss. 311(a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... Not Applicable
ss. 312(a) ........................................... 2.6
(b) ........................................... 10.3
(c) ........................................... 10.3
ss. 313(a) ........................................... 7.6
(b)(1) ........................................... 7.6
(b)(2) ........................................... 7.6, 7.7
(c)(1) ........................................... 7.6
(d) ........................................... 7.6
ss. 314(a) ........................................... 4.2, 10.5
(b) ........................................... Not Applicable
(c)(1) ........................................... 10.4
(c)(2) ........................................... 10.4
(c)(3) ........................................... Not Applicable
(d) ........................................... Not Applicable
(e) ........................................... 10.5
(f) ........................................... Not Applicable
ss. 315(a) ........................................... 7.1
(b) ........................................... 7.5
(c) ........................................... 7.1
(d) ........................................... 7.1
(e) ........................................... 6.14
ss. 316(a) ........................................... 2.10
(a)(1)(A) ........................................... 6.12
(a)(1)(B) ........................................... 6.13
(b) ........................................... 6.8
(c) ........................................... 2.13
ss.317(a)(1) ........................................... 6.3
(a)(2) ........................................... 6.4
(b) ........................................... 2.5
ss. 318(a) ........................................... 10.1
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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Indenture dated as of June [ ], 2004 between Paramount
Resources Ltd., a corporation incorporated under the laws of the Province of
Alberta, Canada (the "Company"), and The Bank of Nova Scotia Trust Company of
New York (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. DEFINITIONS.
"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 purposes of this definition,
"control", as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control unless there is a
beneficial owner that is not an Affiliate of such Person holding a greater
percentage of such Voting Stock. For purposes of this definition, the terms
"controlling", "controlled by" and "under common control with" have correlative
meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least once a day
for at least five days in each calendar week and of general circulation in the
place in connection with which the term is used or in the financial community of
each such place. If it shall be impractical in the opinion of the Trustee to
make any publication of any notice required hereby in an Authorized Newspaper,
any publication or other notice in lieu thereof that is made or given by the
Trustee shall constitute a sufficient publication of such notice.
"Bankruptcy Law" means the Bankruptcy and Insolvency Act
(Canada), the Companies' Creditors Arrangement Act (Canada) or any other
Canadian federal or provincial law relating to, or Title 11, U.S. Code or any
similar federal or state law for, the relief of debtors.
"Bearer" means anyone in possession from time to time of a
Bearer Security.
"Bearer Security" means any Security, including any interest
coupon appertaining thereto that does not provide for the identification of the
Holder thereof.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation (or any duly authorized committee thereof);
(2) with respect to a partnership, the board of directors of
the corporation that is the general partner or managing partner of the
partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been adopted by
the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate and delivered
to the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in the City of New York or the Province
of Alberta are authorized or required by law to close.
"Capital Lease Obligation" means, at the time any
determination is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be classified and accounted for as
a capitalized lease obligation on a balance sheet in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, association or other
business entity, any and all shares, interests, participations, rights
or other equivalents (however designated and whether or not voting) of
corporate stock;
(2) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and
(3) any other interest or participation that confers on a
Person rights in, or other equivalents of or interests in, the equity
of the issuing Person or otherwise confers the right to receive a share
of the profits and losses of, or distributions of assets of, the
issuing Person.
"Company" means Paramount Resources Ltd. and any and all
successors thereto that become a party to this Indenture in accordance with
its terms.
"Company Order" means a written order signed in the name of
the Company by one or more Officers of the Company.
"Company Request" means a written request signed in the name
of the Company by one or more Officers of the Company.
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"Currency Agreement" means any financial arrangement entered
into between a Person (or its Restricted Subsidiaries) and a counterparty on a
case-by-case basis in connection with a foreign exchange futures contract,
currency swap agreement, currency option or currency exchange or other similar
currency related transactions, the purpose of which is to mitigate or eliminate
its exposure to fluctuations in exchange rates and currency values.
"Default" means the occurrence of any event that is, or with
the passage of time or the giving of notice or both would be, an Event of
Default under this Indenture.
"Depositary" means, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary for such Series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "Depositary" as used with
respect to the Securities of any Series shall mean the Depositary with respect
to the Securities of such Series.
"Discount Security" means any Security that provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollar-Denominated Production Payments" means production
payment obligations recorded as liabilities in accordance with GAAP, together
with all undertakings and obligations in connection therewith.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued
by a government other than the government of the United States of America.
"GAAP" means generally accepted accounting principles,
consistently applied, which are in effect in Canada from time to time.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in global form established pursuant to Section
2.2 evidencing all or part of a Series of Securities, issued to the Depositary
for such Series or its nominee, and registered in the name of such Depositary or
nominee.
"Government Securities" means direct non-callable obligations
of, or obligations guaranteed by, the United States of America for the payment
of which guarantee or obligations the full faith and credit of the United States
is pledged.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
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"Hedging Obligations" means, with respect to any specified
Person, the outstanding amount of all obligations of such Person and its
Restricted Subsidiaries under all Currency Agreements and all Interest Rate
Agreements, together with all interest, fees and other amounts payable thereon
or in connection therewith.
"Holder" or "Securityholder" means a person in whose name a
Security is registered or the holder of a Bearer Security.
"Indebtedness" means, with respect to any specified Person at
any date, any indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit, letters of guarantee or tender
cheques (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable;
(6) representing any Hedging Obligations;
(7) in respect of Production Payments;
(8) in respect of Oil and Gas Hedging Contracts; or
(9) in respect of all conditional sale obligations and all
obligations under title retention agreements, but excluding a title
retention agreement to the extent it constitutes an operating lease
under GAAP.
In addition, the term "Indebtedness" includes all Indebtedness of others secured
by a Lien on any asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person) and, to the extent not otherwise included,
the Guarantee by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will
be:
(1) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount; and
(2) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due, in
the case of any other Indebtedness.
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For the avoidance of doubt, "Indebtedness" of any Person shall
not include:
(1) trade payables incurred in the ordinary course of
business and payable in accordance with customary practice;
(2) deferred tax obligations;
(3) minority interests;
(4) uncapitalized interest; and
(5) non-interest-bearing installment obligations and accrued
liabilities incurred in the ordinary course of business.
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
"interest" with respect to any Discount Security which by its
terms bears interest only after maturity, means interest payable after maturity.
"Interest Rate Agreement" means any financial arrangement
entered into between a Person (or its Restricted Subsidiaries) and a
counterparty on a case-by-case basis in connection with interest rate swap
transactions, interest rate options, cap transactions, floor transactions,
collar transactions and other similar interest rate protection-related
transactions, the purpose of which is to mitigate or eliminate its exposure to
fluctuations in interest rates.
"Issue Date" means, with respect to the Securities of any
Series, the first date any Securities of such Series are issued under this
Indenture.
"Lien" means, with respect to any asset, any mortgage, lien
(statutory or otherwise), pledge, charge, security interest or encumbrance upon
or with respect to any property of any kind, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or
other title retention agreement but excluding a title retention agreement to the
extent it would constitute an operating lease in accordance with GAAP and
generally accepted accounting principles in the United States, as in effect on
the applicable Issue Date.
"Officer" means, with respect to any Person, the Chairman of
the Board of Directors, Chief Executive Officer, President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 10.5.
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"Oil and Gas Hedging Contracts" means any transaction,
arrangement or agreement entered into between a Person (or any of its Restricted
Subsidiaries) and a counterparty on a case-by-case basis, including any futures
contract, a commodity option, a swap, a forward sale or otherwise, the purpose
of which is to mitigate, manage or eliminate its exposure to fluctuations in
commodity prices, including contracts settled by physical delivery of the
commodity not settled within 60 days of the date of any such contract; PROVIDED
that Production Payments will not be treated as Oil and Gas Hedging Contracts
for the purposes of this Indenture.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee that meets the requirements of Section
10.5. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government, government body or agency or other
entity.
"Production Payments" means Dollar-Denominated Production
Payments and Volumetric Production Payments, collectively.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust administration 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 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.
"Restricted Subsidiary" of a Person means any Subsidiary of
such Person that is not an Unrestricted Subsidiary.
"SEC" means the United States Securities and Exchange
Commission.
"Securities" means the debentures, notes or other debt
instruments of the Company of any Series authenticated and delivered under this
Indenture.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Series" or "Series of Securities" means each or any series of
debentures, notes or other debt instruments of the Company created pursuant to
Sections 2.1 and 2.2 hereof.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and will not
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include any contingent obligations to repay, redeem or repurchase any such
interest or principal prior to the date originally scheduled for the payment
thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned
or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
"Taxes" means any present or future tax, levy, impost,
assessment or other government charge (including penalties, interest and any
other liabilities related thereto) imposed or levied by or on behalf of a Taxing
Authority.
"Taxing Authority" means any government or any political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"TIA" means the United States Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the TIA.
"Trustee" means the party named as such in the preamble to
this Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Subsidiary" with respect to any Series of
Securities shall have the meaning specified in the Board Resolution,
supplemental indenture or Officers' Certificate creating such Series of
Securities.
"Volumetric Production Payments" means production payment
obligations recorded as deferred revenue in accordance with GAAP, together with
all undertakings and obligations in connection therewith.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Wholly Owned Restricted Subsidiary" of the Company means any
Restricted Subsidiary of which all of the outstanding Voting Stock (other than
directors' qualifying shares or shares required to be owned by other Persons
pursuant to applicable law) is owned by the Company or any other Wholly Owned
Restricted Subsidiary.
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Section 1.2. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
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"Additional Amounts" 4.7
"Authentication Order" 2.3
"Calculation Period" 4.1
"Covenant Defeasance" 8.4
"Defeased Covenants" 8.4
"Event of Default" 6.1
"Legal Defeasance" 8.3
"mandatory sinking fund payment" 11.1
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Payment Default" 6.1
"Registrar" 2.4
"Related Judgment" 10.14
"Related Proceedings" 10.14
"Specified Courts" 10.14
Section 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
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(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" and "including" are not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) "will" shall be interpreted to express a command;
(f) references to Sections and Articles are to Sections and
Articles of this Indenture;
(g) provisions apply to successive events and transactions;
and
(h) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE II
THE SECURITIES
Section 2.1. ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more Series. All Securities of a Series shall be
identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution. In the case
of Securities of a Series to be issued from time to time, the Board Resolution,
Officers' Certificate or supplemental indenture may provide for the method by
which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.
At or prior to the issuance of any Securities within a Series,
the following shall be established (as to the Series generally, in the case of
Subsection 2.2.1 and either as to such Securities within the Series or as to the
Series generally in the case of Subsections 2.2.2 through 2.2.22) by a Board
Resolution, a supplemental indenture or an Officers' Certificate pursuant to
authority granted under a Board Resolution:
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2.2.1. the title of the Series (which shall distinguish the Securities of
that particular Series from the Securities of any other Series) and the
aggregate principal amount of the Series;
2.2.2. the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
2.2.3. 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 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of, and premium, if any, on
the Securities of the Series will be payable and the portion (if less than the
principal amount) to be payable upon a declaration of acceleration of maturity;
2.2.5. the rate or rates (which may be fixed or variable) or, if
applicable, the method to be used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date or dates for the payment of interest on any interest payment
date, or the method by which such date or dates will be determined;
2.2.6. the place or places where the principal of, and premium, if any,
and interest, if any, on the Securities of the Series will be payable and each
office or agency where the Securities of the Series may be presented for
registration of transfer or exchange;
2.2.7. the period or periods within which, the price or prices at which,
the currency in which, and other terms and conditions upon which the Securities
of the Series may be redeemed or purchased, in whole or in part, by the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
2.2.9. the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such repurchase
obligations;
2.2.10. if other than denominations of U.S.$1,000 and any integral
multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
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2.2.11. the forms of the Securities of the Series in bearer (with or
without coupons) or fully registered form (and, if in fully registered form,
whether the Securities will be issuable as Global Securities);
2.2.12. if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency or currency unit of denomination of the Securities
of the Series, which may be U.S. Dollars or any Foreign Currency, and if such
currency or currency unit of denomination is a composite currency, the agency or
organization, if any, responsible for overseeing such composite currency;
2.2.14. the designation of the currency, currencies or currency units in
which payment of the principal of and interest, if any, on the Securities of the
Series will be made;
2.2.15. if payments of principal of or interest, if any, on the Securities
of the Series are to be made in one or more currencies or currency units other
than that or those in which such Securities are denominated, the manner in which
the exchange rate with respect to such payments will be determined;
2.2.16. the manner in which the amounts of payment of principal of or
interest, if any, on the Securities of the Series will be determined, if such
amounts may be determined by reference to an index based on a currency or
currencies or by reference to a commodity, commodity index, stock exchange index
or financial index;
2.2.17. the provisions, if any, relating to any guarantee of, security
provided for, or ranking of, the Securities of the Series;
2.2.18. any addition to 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 6.2;
2.2.19. any depositories, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein;
2.2.20. the terms, if any, on which the Securities of the Series may be
converted or exchanged for other debt securities of the Company or of another
Person;
2.2.21. the provisions, if any, relating to the payment of Additional
Amounts and whether the Company may redeem the Securities of the Series rather
than pay the Additional Amounts, if other than contained herein; and
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2.2.22. any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) of the Securities of the Series
including, without limitation, covenants which apply or do not apply solely to
the Securities of the Series and which do not apply or apply, as applicable,
generally to all other Series of Securities.
All Securities of any one Series need not be issued at the
same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in a Board
Resolution, supplemental indenture or Officers' Certificate.
Section 2.3. EXECUTION AND AUTHENTICATION.
One or more Officers shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Trustee or an authenticating
agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee will, from time to time, upon receipt of a written
order of the Company signed by an Officer (an "Authentication Order"),
authenticate Securities of any Series for original issue in the aggregate
principal amount stated in the Authentication Order. The aggregate principal
amount of Securities of any Series outstanding at any time may not exceed such
amount except as provided in Section 2.8.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an Affiliate of the Company.
Section 2.4. REGISTRAR AND PAYING AGENT.
The Company shall maintain, with respect to each Series of
Securities, at the place or places specified with respect to such Series
pursuant to Section 2.2, an office or agency where Securities of such Series may
be presented or surrendered for payment ("Paying Agent") and where Securities of
such Series may be surrendered for registration of transfer or exchange
("Registrar"). The Registrar shall keep a register with respect to each Series
of Securities and to their transfer and exchange.
The Company may appoint one or more co-registrars and one or
more additional paying agents in such other locations as it shall determine. The
term "Registrar" includes any
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co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company will notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
Unless otherwise provided in the applicable Board Resolution,
supplemental indenture or Officers' Certificate, the Company initially appoints
The Depository Trust Company to act as Depositary with respect to the
Securities.
Unless otherwise provided in the applicable Board Resolution,
supplemental indenture or Officers' Certificate, the Company initially appoints
the Trustee at its corporate trust office in the Borough of Manhattan, City of
New York, State of New York to act as the Registrar and Paying Agent with
respect to each Series of Securities.
Section 2.5. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will, and the Trustee when
acting as Paying Agent agrees that it will, hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
money disbursed by it. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of
Securityholders of each Series of Securities all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for each Series of Securities.
Section 2.6. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities and shall otherwise
comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least seven Business Days before each interest
payment date and at such other times as the Trustee may request in writing a
list, in such form and as of such date as the Trustee may reasonably require, of
the names and addresses of Securityholders of each Series of Securities and the
Company shall otherwise comply with TIA ss. 312(a).
Section 2.7. TRANSFER AND EXCHANGE.
Where Securities of a Series are presented to the Registrar or
a co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of
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the same Series, the Registrar shall register the transfer or make the exchange
if its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.11, 3.6 or 9.5).
Neither the Company nor the Registrar shall be required (a) to
issue, register the transfer of, or to exchange Securities of any Series for the
period beginning at the opening of business 15 days immediately preceding the
selection of Securities of that Series for redemption and ending at the close of
business on the day of the mailing of a notice of such selection, (b) to
register the transfer of or to exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part
or (c) to register the transfer of or to exchange any Security between a record
date and the next succeeding interest payment date with respect to such
Security.
Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and interest on
such Securities and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
Section 2.8. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the
Company or the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Security, the Company will issue and the Trustee, upon
receipt of an Authentication Order, will authenticate a replacement Security of
the same Series if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Security is replaced. The Company may charge for its
expenses in replacing a Security.
Every new Security of any Series issued pursuant to this
Section is an additional obligation of the Company and will be entitled to all
of the benefits of this Indenture equally and proportionately with all other
Securities of that Series duly issued hereunder.
Section 2.9. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
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If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a "protected purchaser" within the meaning of
Section 8-303 of the Uniform Commercial Code of New York.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, for any period of time, on the maturity of
Securities of a Series money sufficient to pay such Securities payable on that
date, then on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
Section 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of a Series
owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.11. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities upon
a Company Order. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
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Section 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for transfer, exchange, payment, replacement or cancellation and
shall destroy such canceled Securities (subject to the record retention
requirement of the Exchange Act) and deliver a certificate of such destruction
to the Company, unless the Company otherwise directs. The Company may not issue
new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation.
Section 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on a Series
of Securities, it shall pay the defaulted interest, plus, to the extent
permitted by law, any interest payable on the defaulted interest, to the persons
who are Securityholders of the Series on a subsequent special record date, in
each case at the rate provided in the Securities of such Series and Section 4.1.
The Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Security and the date of the proposed
payment. The Company shall fix or cause to be fixed the special record date and
payment date; PROVIDED that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. At least 15
days before the special record date, the Company (or, upon the written request
of the Company, the Trustee in the name and at the expense of the Company) will
mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
Section 2.14. GLOBAL SECURITIES.
2.14.1. TERMS OF SECURITIES. A Board Resolution, a supplemental indenture
hereto or an Officers' Certificate shall establish whether the Securities of a
Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depositary for such Global Security or Securities.
2.14.2. TRANSFER AND EXCHANGE. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture
for Securities registered in the names of Holders other than the Depositary for
such Security or its nominee only if
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary; or
(2) upon request by any Holder of Securities of any Series if
there has occurred and is continuing an Event of Default with respect
to the Securities of such Series.
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Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary
shall direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security
may not be transferred except as a whole by the Depositary with respect to such
Global Security to a nominee of such Depositary, by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
2.14.3. LEGEND. Any Global Security issued hereunder shall bear a legend
in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.7 OF THE
INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.14 OF THE INDENTURE, (3) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF PARAMOUNT
RESOURCES LTD."
2.14.4. ACTS OF HOLDERS. The Depositary, as a Holder, may appoint agents
and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
2.14.5. PAYMENTS. Notwithstanding the other provisions of this Indenture,
unless otherwise specified as contemplated by Section 2.2, payment of the
principal of, premium, if any, and interest, if any, on any Global Security
shall be made to the Holder thereof.
2.14.6. CONSENTS, DECLARATION AND DIRECTIONS. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of
the Depositary with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
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Section 2.15. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; 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 or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
Section 3.1. NOTICE TO TRUSTEE.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company elects or is
obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify
the Trustee of the redemption date and the principal amount of Series of
Securities to be redeemed. Except as specified in Section 11.3, the Company
must furnish to the Trustee, at least 30 days but not more than 60 days
before the redemption date, an Officers' Certificate setting forth:
(a) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are
being redeemed;
(b) the redemption date;
(c) the principal amount of Securities to be redeemed; and
(d) the redemption price.
Section 3.2. SELECTION OF SECURITIES TO BE REDEEMED.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed among the Holders in compliance with the
requirements of the principal national securities exchange, if any, on which
such Securities are listed or, if the Securities are not so listed, on a PRO
RATA basis, by lot or in accordance with any other method the Trustee in its
sole discretion considers fair and appropriate. The Trustee shall make the
selection from Securities of the Series then outstanding not previously called
for redemption. The Trustee will promptly notify the Company in writing of the
Securities selected for redemption and, in the case of a Security selected for
partial
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redemption, the principal amount thereof to be redeemed. The Trustee may select
for redemption portions of the principal of Securities of the Series that have
denominations larger than U.S.$1,000. Securities of the Series and portions of
them it selects shall be in amounts of U.S.$1,000 or whole multiples of
U.S.$1,000 or, with respect to Securities of any Series issuable in other
denominations pursuant to Section 2.2.10, the minimum principal denomination for
each Series and integral multiples thereof; except that if all of the Securities
of a Series of a Holder are to be redeemed, the entire outstanding amount of
such Securities held by such Holder, even if not a multiple of U.S.$1,000, shall
be redeemed. Provisions of this Indenture that apply to Securities of a Series
called for redemption also apply to portions of Securities of that Series called
for redemption.
Section 3.3. NOTICE OF REDEMPTION.
Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail to its registered address,
a notice of redemption to each Holder whose Securities of any Series are to be
redeemed and if any Bearer Securities are outstanding, publish on one occasion a
notice in an Authorized Newspaper. Redemption notices may be mailed or published
more than 60 days prior to a redemption date if the notice is issued in
connection with a defeasance of the Securities of any Series or a satisfaction
and discharge of this Indenture pursuant to Articles VIII or IX of this
Indenture.
The notice shall identify the Securities of the Series to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the redemption date upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Security;
(d) the name and address of the Paying Agent;
(e) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(f) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date;
(g) the applicable CUSIP number, if any, and that no
representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Securities of
the Series; and
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(h) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published as provided
in Section 3.3, Securities of a Series called for redemption become due and
payable on the redemption date and at the redemption price. A notice of
redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the
redemption date.
Section 3.5. DEPOSIT OF REDEMPTION PRICE.
One Business Day before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date. The
Paying Agent will promptly return to the Company any money deposited with the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued and unpaid interest on, all
Securities to be redeemed or purchased.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest will cease to
accrue on the Securities or the portions of Securities called for redemption or
purchase. If a Security is redeemed or purchased on or after an interest record
date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Security was
registered at the close of business on such record date. If any Security called
for redemption or purchase is not so paid upon surrender for redemption or
purchase because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
Section 4.1 and the Securities.
Section 3.6. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder at the expense of the Company a new
Security of the same Series and the same maturity equal in principal amount to
the unredeemed portion of the Security surrendered.
Section 3.7. TAX REDEMPTION.
If the Company becomes obligated to pay Additional Amounts in
respect of the Securities of any Series as a result of a change in the laws or
regulations of Canada or any Canadian Taxing Authority, or a change in any
official position regarding the application or
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interpretation thereof, which is publicly announced or becomes effective on or
after the applicable Issue Date, the Company may, at its option, redeem the
Securities of such Series, in whole but not in part, upon not less than 30 nor
more than 60 days' notice, at a redemption price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the redemption
date.
ARTICLE IV
COVENANTS
Section 4.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will pay or cause to be paid the principal of,
premium, if any, and interest on the Securities of each Series on the dates and
in the manner provided in the Securities of such Series. Principal, premium, if
any, and interest will be considered paid on the date due if the Paying Agent,
if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due.
The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Securities of each Series to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace or cure period)
at the same rate to the extent lawful.
For purposes of disclosure under the Interest Act (Canada),
the yearly rate of interest to which interest is calculated under a Security of
any Series for any period in any calendar year (the "Calculation Period") is
equivalent to the rate payable under a Security of such Series in respect of the
Calculation Period multiplied by a fraction the numerator of which is the actual
number of days in such calendar year and the denominator of which is the actual
number of days in the Calculation Period.
Section 4.2. REPORTS.
Whether or not required by the SEC, so long as any Securities
are outstanding, the Company will furnish, or cause the Trustee to furnish, to
the Holders, within the time periods (except as otherwise noted below) specified
in the SEC's rules and regulations:
(1) (a) all annual financial information that would be
required to be contained in a filing with the SEC on Forms 20-F or
40-F, as applicable (or any successor forms), containing the
information required therein (or required in such successor form)
including a report on the annual financial statements by the Company's
certified independent accountants; and
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(b) for the first three quarters of each year, all quarterly
financial information that would be required to be contained in
quarterly reports under the laws of Canada or any province thereof or
provided to securityholders of a company with securities listed on the
Toronto Stock Exchange, whether or not the Company has any of its
securities so listed, in each case including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations"; and
(2) within 10 Business Days after the occurrence of any event
that would give rise to a requirement to file information regarding
such event with the SEC on Form 8-K, all information that would
otherwise be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports.
In addition, whether or not required by the SEC, the Company
will file a copy of all of the information and reports referred to in clauses
(1) and (2) of this Section 4.2 with the SEC for public availability within the
time periods specified in the SEC's rules and regulations (unless the SEC will
not accept such a filing).
Section 4.3. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are
outstanding, deliver promptly to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.4. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture or the Securities; and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort
to any such law, 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 has been enacted.
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Section 4.5. CORPORATE EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect:
(a) its corporate existence, and the corporate, partnership
or other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from
time to time) of the Company or any such Subsidiary; and
(b) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries;
PROVIDED that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders of the Securities.
Section 4.6. TAXES.
The Company shall, and shall cause each of its Subsidiaries
to, pay, prior to delinquency, all material Taxes, except such as are contested
in good faith and by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of any Series of
Securities.
SECTION 4.7. PAYMENT OF ADDITIONAL AMOUNTS.
(a) Unless otherwise specified in the Board Resolution,
Officers' Certificate or supplemental indenture creating any Series
of Securities, all payments made by the Company or on behalf of the
Company with respect to the Securities of each Series will be made
without withholding or deduction for any Taxes imposed by any Canadian
Taxing Authority, unless required by law or the interpretation or
administration thereof by the relevant Canadian Taxing Authority. If
the Company is obligated to withhold or deduct any amount on account
of Taxes imposed by any Canadian Taxing Authority from any payment
made with respect to the Securities of any Series, the Company will:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the
relevant government authority in accordance with the applicable law;
(3) pay such additional amounts ("Additional Amounts") as
may be necessary so that the net amount received by each Holder
(including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if
such Taxes had not been withheld or deducted;
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(4) furnish to the Trustee for the benefit of the Holders,
within 30 days after the date the payment of any Taxes is due, an
official receipt of the relevant government authorities for all amounts
deducted or withheld, or if such receipts are not obtainable, other
evidence of payment by the Company of those Taxes;
(5) indemnify and hold harmless each Holder, other than as
described below, for the amount of:
(i) any Taxes (including interest and penalties) paid by
such Holder as a result of payments made on or with respect thereto,
and
(ii) any Taxes imposed with respect to any reimbursement
under the preceding clause (i) or this clause (ii), but excluding any
such Taxes on such Holder's net income; and
(6) at least 15 days prior to each date on which any
Additional Amounts are payable, deliver to the Trustee an Officers'
Certificate setting forth the calculation of the Additional Amounts to
be paid and such other information as the Trustee may request to enable
the Trustee to pay such Additional Amounts to Holders on the payment
date.
(b) Notwithstanding the foregoing, the Company will not pay
Additional Amounts to a Holder in respect of a beneficial owner of a
Security:
(1) imposed or withheld by reason of the failure of the
Holder or beneficial owner to complete, execute and deliver to the
Company any form or document to the extent applicable to such Holder
or beneficial owner that may be required by law or by reason of
administration of such law and which is reasonably requested in
writing to be delivered by the Company in order to enable the Company
to make payments on the Securities without deduction or withholding
for Taxes, or with deduction of withholding of a lesser amount, which
form or document shall be delivered within 60 days of a written
request therefor by the Company;
(2) in any case where such beneficial owner is not a resident
(within the meaning of the Canada-United States Income Tax Convention)
of the United States of America, in excess of the amount which the
Company would have been obligated to pay hereunder if such beneficial
owner were resident in the United States of America for the purposes of
such treaty;
(3) where the Company does not deal at arm's length (within
the meaning of the Income Tax Act (Canada)) at the time of making such
payment with such beneficial owner; or
(4) where such Holder or beneficial owner is subject to such
Taxes by reason of its being connected with Canada or any province or
territory thereof otherwise than by the mere acquisition, holding or
disposition of Securities or the receipt of payments thereunder.
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(c) If, following any payment made by the Company to any
Holder under Section 4.7(a)(3) or any indemnity payment made by the
Company to any Holder under Section 4.7(a)(5), such Holder shall
receive or be granted a refund, credit, allowance or remission in
respect of the Taxes resulting in the payment thereof and such Holder
is able to readily identify such refund, credit, allowance or remission
as being attributable to such Taxes, such Holder shall, to the extent
that it can do so without prejudice to the retention of the amount of
such refund, credit, allowance or remission and without prejudice to
the right of such Holder to obtain any other relief or allowance which
may be available to it, reimburse the Company with such amount as such
Holder, acting reasonably, determines to be the amount of money
attributable to such refund, credit, allowance or remission that may be
paid by such Holder to leave it (after such reimbursement) in no worse
position than it would have been in had there been no such deduction or
withholding or payment of Taxes which resulted in the payment under
Section 4.7(a)(3) or Section 4.7(a)(5). Such Holder may charge to the
Company (and may deduct from amounts reimbursable to the Company
hereunder) a fee reasonably determined by such Holder to compensate it
for any additional effort expended or cost incurred in determining such
credit or remission or allocating it to the Company. Notwithstanding
the foregoing, no Holder shall be obligated to disclose to the Company,
or any of its agents, any computation made by such Holder in connection
with this paragraph or any information regarding such Holder's tax
status or affairs.
(d) Any reference in this Indenture to the payment of
principal, premium, if any, interest, redemption price or any other
amount payable under or with respect to any Securities, will be deemed
to include the payment of Additional Amounts to the extent that, in
such context, Additional Amounts are, were or would be payable in
respect thereof. The Company's obligation to make payments of
Additional Amounts will survive any termination of this Indenture or
the defeasance of any rights thereunder.
ARTICLE V
SUCCESSORS
Section 5.1. WHEN COMPANY MAY MERGE, ETC.
(a) The Company may not, directly or indirectly: (1)
amalgamate, consolidate or merge with or into another Person (whether
or not the Company is the surviving corporation); or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of
the properties or assets of the Company and its Restricted Subsidiaries
taken as a whole, in one or more related transactions, to another
Person, unless:
(1) either (a) the Company is the surviving corporation, or
(b) the Person formed by or surviving any such amalgamation,
consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, conveyance or other disposition has been
made is a corporation organized or existing under the laws of Canada or
any province thereof or the United States, any state thereof or the
District of Columbia;
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(2) the Person formed by or surviving any such amalgamation,
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, conveyance or other disposition
has been made expressly assumes all the obligations of the Company
under each outstanding Series of Securities and this Indenture pursuant
to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of
Default exists;
(4) the transactions will not result in the Company or the
surviving corporation being required to make any deduction or
withholding on account of taxes as described in Section 4.7 that the
Company would not have been required to make had such transactions or
series of transactions not occurred; and
(5) in case the Company shall consolidate, amalgamate or
merge with or into any other Person or, except for conveyances or
transfers to one or more Wholly Owned Restricted Subsidiaries, convey
or transfer its properties and assets substantially as an entirety to
any Person, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger, conveyance or transfer and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article V
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
(b) In addition, the Company may not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or
more related transactions, to any other Person.
Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any amalgamation, consolidation or merger, or any sale,
assignment, transfer, conveyance or other disposition of all or substantially
all of the assets of the Company in a transaction that is subject to, and that
complies with the provisions of Section 5.1, the successor corporation formed by
such consolidation or into or with which the Company is amalgamated or merged or
to which such sale, assignment, transfer, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such amalgamation, consolidation, merger, sale, assignment, transfer,
conveyance or other disposition, the provisions of this Indenture referring to
the "Company" shall refer instead to the successor corporation and not to the
Company), and such successor corporation 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; PROVIDED that the predecessor
Company shall not be relieved from the obligation to pay the principal of and
interest on the Securities of each outstanding Series except in the case of a
sale of all of the Company's assets in a transaction that is subject to, and
that complies with the provisions of, Section 5.1.
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any Series, means any one of the following events, unless in the
establishing Board Resolution, supplemental indenture or Officers' Certificate,
it is provided that such Series shall not have the benefit of said Event of
Default:
(a) default for 30 days in the payment when due of interest
on the Securities of that Series;
(b) default in payment when due of the principal of or
premium, if any, on the Securities of that Series;
(c) failure by the Company to comply with Section 5.1;
(d) failure by the Company or any of its Restricted
Subsidiaries to comply with any of the other agreements in this
Indenture for 60 days after written notice has been given to the
Company by the Trustee or to the Company and the Trustee by Holders of
at least 25% of the outstanding principal amount of the Securities of
such Series;
(e) default under any other mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists or is created after the Issue
Date, if that default:
(i) is caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness prior to the expiration of the
applicable grace or cure period provided in such Indebtedness on the
date of such default (a "Payment Default"); or
(ii) results in the acceleration of such Indebtedness prior
to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default, which remains
outstanding or the maturity of which has been so accelerated,
aggregates U.S.$10.0 million or more; PROVIDED that if any such default
is cured or waived or any such acceleration is rescinded, or such
Indebtedness is repaid, within a period of 30 days from the
continuation of such default beyond the applicable grace or cure period
or the occurrence of such acceleration, as the case may be, such Event
of Default under this Indenture and any consequential acceleration of
any Series of
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Securities shall be automatically rescinded, so long as such
rescission does not conflict with any judgment or decree;
(f) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of U.S.$10.0
million in cash (net of amounts covered by insurance or bonded), which
judgments are not paid, discharged or stayed for a period of 60 days
after the date of entry of such judgment or, in the event such
judgments have been bonded to the extent required pending appeal, after
the date such judgments become non-appealable;
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary in
an involuntary case;
(B) appoints a custodian of the Company or any of
its Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant
Subsidiary or for all or substantially all of the property
of the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of
its Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(h) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, in
accordance with Section 2.2.18.
Section 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
In the case of an Event of Default specified in clause (g) of
Section 6.1, with respect to the Company, any Subsidiary that is a Significant
Subsidiary or any group of Subsidiaries that, taken as a whole, would constitute
a Significant Subsidiary, all outstanding Securities of each Series to which
such Event of Default applies will become due and payable immediately without
further action or notice. If any other Event of Default occurs and is
continuing with respect to any Series of Securities, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding
Securities of such Series may declare all the Securities of such Series to be
due and payable immediately by notice to the Company and (if given by the
Holders) to the Trustee in accordance with this Indenture.
Upon any such declaration, the Securities of such Series shall
become due and payable immediately. The Holders of a majority in aggregate
principal amount of the then outstanding Securities of a Series by written
notice to the Trustee may on behalf of all of the
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Holders rescind an acceleration and its consequences with respect to the
Securities of such Series if the rescission would not conflict with any judgment
or decree and if all existing Events of Default (except nonpayment of principal,
interest or premium, if any, that has become due solely because of the
acceleration) have been cured or waived.
Section 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default specified in Section 6.1(a) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Securities
and interest on overdue principal and, to the extent lawful, interest and 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 and any amounts due the Trustee
under Section 7.7 hereof.
Section 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 in writing to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to 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 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained 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 of any Series or the rights
of any Holder, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
Section 6.5. 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
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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.
Section 6.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
with respect to any Series of Securities 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 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 Trustee, its agents and attorneys for amounts
due under Section 7.7 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection; and
Second: to Holders of Securities of such Series for amounts
due and unpaid on such Securities for principal, premium, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for
principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
Section 6.7. 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:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b) the Holders of at least 25% in aggregate principal amount
of the then outstanding Securities of that Series shall have made
written request to the Trustee to pursue the remedy;
(c) such Holder or Holders have offered and, if requested,
provided to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee for 60 days after its receipt of such notice,
request and, if requested, offer of indemnity has failed to institute
any such proceeding; and
(e) 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 then outstanding Securities of that
Series;
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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 such
Holders.
Section 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL 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, premium, if any, and
interest, if any, on such Security on or after the dates of maturity or
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
on or after such respective dates, and such rights shall not be impaired or
affected without the consent of such Holder.
Section 6.9. 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 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 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, 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 6.11. 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.
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Section 6.12. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
then outstanding Securities of any Series shall have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability or would be unduly prejudicial to the rights of
other Holders.
Section 6.13. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the
then outstanding Securities of any Series may, by written notice to the Trustee
on behalf of the Holders of all the Securities of such Series, waive any
existing Default or Event of Default hereunder with respect to such Series and
its consequences, except a continuing Default or Event of Default in the payment
of the principal of, premium, if any, or interest on any Security of such Series
(PROVIDED, HOWEVER, that the Holders of a majority in aggregate principal amount
of the then outstanding Securities of such Series may rescind an acceleration
and its consequences, including any related payment Default that resulted from
such acceleration). 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 6.14. 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 or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Security of any Series pursuant to Section 6.8 hereof, or a suit by
Holders of more than 10% in aggregate principal amount of the then outstanding
Securities of any Series.
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ARTICLE VII
TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; HOWEVER, in the case
of any such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the then
outstanding Securities of such Series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to Sections 7.1 and 7.2.
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity satisfactory to it
against any loss, liability or expense.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture will require the Trustee
to expend or risk its own funds or incur any liability.
(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of
care as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
Section 7.2. RIGHTS OF TRUSTEE.
(a) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee will not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(b) The Trustee may act through its attorneys and agents and
will not be responsible for the misconduct or negligence of any agent
appointed with due care.
(c) The Trustee will not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within the rights or powers conferred upon it by this Indenture.
(d) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company will be
sufficient if signed by an Officer of the Company.
(e) The Trustee will 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 unless such Holders have offered to
the Trustee security or indemnity satisfactory to it against the
costs, losses, expenses and liabilities that might be incurred by it
in compliance with such request or direction.
(f) 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 Officers'
Certificate.
(g) The Trustee may consult with counsel and the written
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.
(h) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
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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.
(i) 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.
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. TRUSTEE'S DISCLAIMER.
The Trustee will not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities of any Series, it shall not be accountable for the Company's use of
the proceeds from the Securities of any Series or any money paid to the Company
or upon the Company's direction under any provision of this Indenture, it will
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in any Security or any other
document in connection with the sale of the Securities of any Series or pursuant
to this Indenture other than its certificate of authentication.
Section 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series and, if any Bearer Securities are outstanding, publish
on one occasion in an Authorized Newspaper, notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer
of the Trustee has knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Security of any Series, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Securityholders of
that Series.
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after May 15 in each year, the Trustee shall
transmit by mail to all Securityholders, as their names and addresses appear on
the register kept by the Registrar and, if
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any Bearer Securities are outstanding, publish in an Authorized Newspaper, a
brief report dated as of such May 15, in accordance with, and to the extent
required under, TIA ss. 313.
A copy of each report at the time of its mailing to
Securityholders of any Series shall be mailed by the Trustee to the Company and
filed by the Trustee with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7. COMPENSATION AND INDEMNITY.
(a) The Company will pay to the Trustee from time to time
compensation agreed to with the Trustee for its acceptance of this
Indenture and services hereunder. The Trustee's compensation will not
be limited by any law on compensation of a trustee of an express trust.
The Company agrees to reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by
it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
(b) The Company agrees to indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of
or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 7.7) and
defending itself against any claim (whether asserted by the Company,
any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense is caused by
its negligence or bad faith. The Trustee will notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company will not relieve the Company of its
obligations hereunder. The Company agrees to defend the claim and the
Trustee will cooperate in the defense. The Trustee may have separate
counsel and the Company will pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without
its consent, which consent will not be unreasonably withheld.
(c) The obligations of the Company under this Section 7.7
will survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this
Section 7.7, the Trustee will have a Lien prior to the Securities of
any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular
Securities of that Series. Such Lien will survive the satisfaction and
discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(g) hereof occurs,
the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
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Section 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.8.
(a) The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company.
The Holders of a majority in principal amount of the then outstanding
Securities of any Series may remove the Trustee with respect to that
Series by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(b) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal
amount of the then outstanding Securities of each Series may appoint a
successor Trustee with respect to such Series to replace the successor
Trustee appointed by the Company.
(c) If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company, or the Holders of at least 10% in principal
amount of the then outstanding Securities of any Series may petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If the Trustee, after written request by any Holder who
has been a Holder for at least six months, fails to comply with Section
7.10, such Holder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) A successor Trustee will deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon,
the resignation or removal of the retiring Trustee will become
effective, and the successor Trustee will have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee
will mail a notice of its succession to Holders. The retiring Trustee
will promptly transfer all property held by it as Trustee to the
successor Trustee; PROVIDED all sums owing to the Trustee hereunder
have been paid and subject to the Lien provided for in Section 7.7.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 will continue for the
benefit of the retiring Trustee.
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Section 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There will at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus
(together with that of its parent) of at least U.S.$100 million as set forth in
its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA xx.xx. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b). The indenture dated as of October 27, 2003 between the Company
and the Trustee shall be deemed to be specifically described herein for the
purposes of clause (i) of the first proviso contained in ss. 310(b) of the TIA.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will be discharged and will cease to be of
further effect as to all Securities issued hereunder, when:
(a) either:
(i) all Securities that have been authenticated, except
lost, stolen or destroyed Securities that have been replaced
or paid and Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to
the Company, have been delivered to the Trustee for
cancellation; or
(ii) all Securities that have not been delivered to the
Trustee for cancellation have become due and payable by
reason of the mailing of a notice of redemption or otherwise
or will become due and payable within one year and the
Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, Government
Securities, or a combination of cash in U.S. dollars and
Government
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Securities, in amounts as will be sufficient to pay and
discharge the principal, premium, if any, and accrued
interest to the date of maturity or redemption;
(b) no Default or Event of Default has occurred and is
continuing on the date of the deposit or will occur as a result of the
deposit other than a Default or Event of Default resulting from the
borrowing of funds to be applied to the deposit referred to in
clause (a) and the deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the
Company or any Restricted Subsidiary is a party or by which the
Company or any Restricted Subsidiary is bound;
(c) the Company has paid or caused to be paid all sums
payable by it under this Indenture;
(d) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Securities at maturity or the redemption date, as the
case may be; and
(e) the Company has delivered an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, if money has been deposited with the Trustee pursuant to subclause
(ii) of clause (a) of this Section, the provisions of Section 8.2 and Section
8.7 will survive. In addition, nothing in this Section 8.1 will be deemed to
discharge those provisions of Section 7.7, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 8.2. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
Subject to the provisions of Section 8.7, all money deposited
with the Trustee pursuant to Section 8.1 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
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 8.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.1;
PROVIDED that if the Company has made any payment of principal of, premium, if
any, or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.
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Section 8.3. LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES.
Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2.22, to be inapplicable to Securities of any Series, upon the
Company' exercise of the option applicable to this Section 8.3, the Company
will, subject to the satisfaction of the conditions set forth in Section 8.5,
have all of its obligations discharged with respect to the outstanding
Securities of any Series ("Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Securities of such Series,
which will thereafter be deemed to be "outstanding" only for the purposes of
Section 8.6 and the other Sections of this Indenture referred to in clauses (a)
and (b) below, and to have satisfied all their other obligations under such
Series of Securities and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which will survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders to receive payments in respect of
the principal of, or interest or premium, if any, on such Securities
when such payments are due from the trust referred to in Section 8.5;
(b) the Company's obligations with respect to such Securities
under Sections 2.4, 2.5, 2.8 and 2.11;
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection
therewith; and
(d) this Article VIII.
Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.3 notwithstanding the prior exercise of
its option under Section 8.4.
Section 8.4. COVENANT DEFEASANCE.
Unless this Section 8.4 is otherwise specified, pursuant to
Section 2.2.22, to be inapplicable to Securities of any Series, upon the
Company's exercise of the option applicable to this Section 8.4, the Company
will, subject to the satisfaction of the conditions set forth in Section 8.5
hereof, be released from its obligations under the covenants contained in
Sections 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6 and such other covenants as may be
provided for in any supplemental indenture, Board Resolution or Officers'
Certificate (collectively, the "Defeased Covenants") with respect to the
outstanding Securities of any Series on and after the date the conditions set
forth in Section 8.5 hereof are satisfied (hereinafter, "Covenant
Defeasance"), and the Securities of such Series will thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such Defeased Covenants, but will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Series of Securities will not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Securities of any Series, the Company may omit to comply with and
will have no liability in respect of any term, condition or limitation set
forth in any such
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Defeased Covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Defeased Covenant or by reason of any reference in
any such Defeased Covenant to any other provision herein or in any other
document and such omission to comply will not constitute a Default or an Event
of Default under Section 6.1 hereof, but, except as specified above, the
remainder of this Indenture and such Securities will be unaffected thereby. In
addition, upon the Company's exercise of the option applicable to this Section
8.4, subject to the satisfaction of the conditions set forth in Section 8.5
hereof, Section 6.1(c) and (d) (with respect to any Event of Default resulting
from a violation of the Defeased Covenants only) and Sections 6.01(e) through
6.01(h) hereof will not constitute Events of Default.
Section 8.5. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance under Section 8.3
or Covenant Defeasance under Section 8.4:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the applicable Series of
Securities, cash in United States dollars, Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants in Canada or the United States selected by the Company, to
pay the principal of, or interest and premium, if any, on the
outstanding Securities of such Series to the Stated Maturity or the
applicable redemption date, as the case may be, and the Company must
specify whether such Securities are being defeased to maturity or to a
particular redemption date;
(b) in the case of an election under Section 8.3, the Company
has delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that:
(i) the Company has received from, or there has been
published by, the Internal Revenue Service and each applicable
Canadian Taxing Authority a ruling; or
(ii) since the Issue Date, there has been a change in
the applicable Canadian and United States federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel will confirm that, the Holders of the outstanding Securities
of such Series will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to Canadian and United States federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.4, the Company
has delivered to the Trustee (i) an Opinion of Counsel confirming that
the Holders of the outstanding Securities of such Series will not
recognize income, gain or loss for U.S. federal income tax purposes as
a result of such Covenant Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had
not occurred and (ii) an Opinion of
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Counsel of counsel that is qualified to practice in Canada or a ruling
from the Canada Customs and Revenue Agency to the effect that Holders
of the outstanding Securities of such Series who are not resident in
Canada will not recognize income, gain or loss for Canadian federal,
provincial or territorial income tax or other tax purposes as a result
of such deposit and defeasance and will only be subject to Canadian
federal, provincial or territorial income tax and other taxes on the
same amounts, in the same manner and at the same times as would have
been the case had such deposit and defeasance not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(e) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by
which the Company or any of its Restricted Subsidiaries is bound;
(f) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(g) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for under this Indenture relating to the
Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.6. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.7, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.6, the "Trustee") pursuant
to Section 8.5 in respect of the outstanding Securities of any Series will 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 Paying Agent (including the Company acting as 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, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company will pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or Government
Securities deposited pursuant to Section 8.5 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 the outstanding Securities of the
applicable Series.
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Notwithstanding anything in this Article VIII to the contrary,
the Trustee will deliver or pay to the Company from time to time upon the
request of the Company any money or Government Securities held by it as provided
in Section 8.5 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.5(a)), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.7. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Securities and remaining unclaimed for two years (or
such shorter period of time for return of such monies to the Company under
applicable abandoned property laws) after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) will be discharged from such trust; and the
Holder of such Securities will thereafter be permitted to look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, will thereupon cease; PROVIDED 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 THE NEW YORK TIMES and THE WALL
STREET JOURNAL (national edition), notice that such money remains unclaimed and
that, after a date specified therein, which will not be less than 30 days from
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.8. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or Government Securities in accordance with Section 8.5, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations of the Company under this Indenture and the Securities will be
revived and reinstated as though no deposit had occurred pursuant to Section 8.5
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.5; PROVIDED that, if the Company makes any
payment of principal of, premium, if any, or interest on any Security following
the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.2 of this Indenture, the Company and
the Trustee may amend or supplement this Indenture or the Securities of any
Series without the consent of any Holder of a Security:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(c) to provide for the assumption of the Company's
obligations pursuant to this Indenture by a successor to the Company
pursuant to Article V hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of any Series of Securities or that
does not adversely affect the legal rights hereunder of any such
Holder; or
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.6, the Trustee will join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.2. WITH CONSENT OF HOLDERS.
(a) Except as provided below in this Section 9.2, the Company
and the Trustee may amend or supplement this Indenture and the
Securities of any Series with the consent of the Holders of at least a
majority in principal amount of the Securities of such Series then
outstanding voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Securities of such Series), and, subject to
Sections 6.8 and 6.13, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of,
premium, if any, and interest on the Securities of such Series, except
a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the
Securities of such Series may be waived with the consent of the Holders
of at least a majority in principal amount of the then outstanding
Securities of such Series voting as a single class (including consents
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obtained in connection with a tender offer or exchange offer for, or
purchase of, the Securities of such Series). Section 2.9 shall
determine which Notes are considered to be "outstanding" for purposes
of this Section 9.2.
However, without the consent of each Holder affected, an
amendment or waiver under this Section 9.2 may not (with respect to any
Securities of a Series held by a non-consenting Holder):
(i) reduce the principal amount of Securities of such Series
whose Holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the time for payment
of any Security of such Series or alter the provisions with respect to
the redemption of any Security of such Series;
(iii) reduce the rate of or change the time for payment of
interest on any Security of such Series;
(iv) waive a Default or Event of Default in the payment of
principal of or interest or premium, if any, on any Security of such
Series (except a rescission of acceleration of the Securities of such
Series by the Holders of at least a majority in aggregate principal
amount of the Securities of such Series and a waiver of the payment
default that resulted from such acceleration);
(v) make any Security of such Series payable in a currency
other than that stated in such Security;
(vi) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of or interest or premium, if any, on the
Securities of such Series;
(vii) waive a redemption payment with respect to any Security
of such Series;
(viii) modify or change any provision of this Indenture or
the related definitions affecting the ranking of any Series of
Securities or the payment of Additional Amounts in any manner adverse
to the Holders of such Series of Securities;
(ix) make any change in the preceding amendment and waiver
provisions.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described
in Section 9.6, the Trustee will join with the Company in the
execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be
obligated to, enter into such amended or supplemental indenture.
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It is not necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it is sufficient if such consent approves the substance
thereof.
(b) After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company will mail to the Holders
affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any
defect therein, will not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or waiver.
Section 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the
Securities of one or more Series shall be set forth in an amended or
supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Security of any Series is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of a
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every
Securityholder of each Series affected by such amendment or waiver unless it is
of the type described in any of clauses (i) through (ix) of Section 9.2(a). In
that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
Section 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the Trustee
shall authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee will sign any amended or supplemental indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign any amended or supplemental indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee will be entitled to receive and (subject to Section 7.1) will be
fully protected in relying upon, in addition to the documents required by
Section 10.4, an
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Officers' Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this
Indenture.
ARTICLE X
MISCELLANEOUS
Section 10.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties will
control.
Section 10.2. NOTICES.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Paramount Resources Ltd.
000 0xx Xxxxxx X.X.
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
With a copy to:
Xxxxxxx Xxxxx LLP 3700
Canterra Tower
000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telecopier No.: (000) 000-0000
Attn: Xxxxx Xxxxxxx
and
Torys LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No: (000) 000-0000
Attn: Xxxxxx Xxxx
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If to the Trustee:
The Bank of Nova Scotia Trust Company of New York
Xxx Xxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Trust Officer
The Company or the Trustee, by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) will be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery;
PROVIDED that notices and communications to the Trustee shall not be deemed
given until actual receipt thereof by the Trustee.
Any notice or communication to a Holder will be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar or, in the case of a Depositary, by such means as
may be acceptable to such Depositary. Any notice or communication will also be
so mailed to any Person described in TIA ss. 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it will not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
will mail a copy to the Trustee and each Agent at the same time.
Section 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA
ss. 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
any or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
Section 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
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(a) an Officers' Certificate (which must include the
statements set forth in Section 10.5) stating that, in the opinion of
the signatories thereto, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(b) an Opinion of Counsel (which must include the statements
set forth in Section 10.5) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA
ss. 314(e) and must include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or
she 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 satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 10.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders of one or more Series. Any Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 10.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company, as such, will have any liability for any obligations of the Company
under any outstanding Securities or this Indenture, or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
of any Security by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for issuance of any Series
of Securities.
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Section 10.8. COUNTERPARTS.
This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.9. GOVERNING LAWS.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 10.10. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 10.11. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 10.12. SEVERABILITY.
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 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.14. CONSENT TO JURISDICTION.
Each party irrevocably agrees that any legal suit, action or
proceeding arising out of or based upon this Indenture or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City of New York or the
courts of the State of New York in each case located in the Borough of Manhattan
in the City of New York (collectively, the "Specified Courts"), and irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. The parties further agree that service of
any process, summons, notice or document by mail to such party's address in the
manner and to the address set forth in Section 10.2 shall be effective service
of
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process for any lawsuit, action or other proceeding brought in any such
court. The parties hereby irrevocably and unconditionally waive any objection to
the laying of venue of any lawsuit, action or other proceeding in the Specified
Courts, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such lawsuit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
Each party not located in the United States hereby irrevocably appoints Torys
LLP, which currently maintains a New York City office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as its agent to receive service
of process or other legal summons for purposes of any such action or proceeding
that may be instituted in any state or federal court in the City and State of
New York.
ARTICLE XI
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such Series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver outstanding Securities of
such Series to which such sinking fund payment is applicable (other than any of
such Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers'
Certificate with respect thereto, not later than 30 days prior to the related
sinking fund payment date, and shall be credited for such purpose by the
Trustee at the price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of
Securities in lieu of cash payments pursuant to this
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Section 11.2, the principal amount of Securities of such Series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, PROVIDED, HOWEVER, that the Trustee or such
Paying Agent shall from time to time upon receipt of a Company Order pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
Series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 30 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, 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 of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 15 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and 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 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
PARAMOUNT RESOURCES LTD.
By: ____________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
By: ____________________________________________
Name:
Title:
