Exhibit 99.2
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PARAMOUNT RESOURCES LTD.
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INDENTURE
Dated as of June 29, 2004
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The Bank of Nova Scotia
Trust Company of New York
Trustee
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TABLE OF CONTENTS
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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.................................49
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
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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 29, 2004
Section 310(a)(1) ...................................................................... 7.10
(a)(2) ...................................................................... 7.10
(a)(3) ...................................................................... Not Applicable
(a)(4) ...................................................................... Not Applicable
(a)(5) ...................................................................... 7.10
(b) ...................................................................... 7.10
Section 311(a) ...................................................................... 7.11
(b) ...................................................................... 7.11
(c) ...................................................................... Not Applicable
Section 312(a) ...................................................................... 2.6
(b) ...................................................................... 10.3
(c) ...................................................................... 10.3
Section 313(a) ...................................................................... 7.6
(b)(1) ...................................................................... 7.6
(b)(2) ...................................................................... 7.6, 7.7
(c)(1) ...................................................................... 7.6
(d) ...................................................................... 7.6
Section 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
Section 315(a) ...................................................................... 7.1
(b) ...................................................................... 7.5
(c) ...................................................................... 7.1
(d) ...................................................................... 7.1
(e) ...................................................................... 6.14
Section 316(a) ...................................................................... 2.10
(a)(1)(A) ...................................................................... 6.12
(a)(1)(B) ...................................................................... 6.13
(b) ...................................................................... 6.8
(c) ...................................................................... 2.13
Section 317(a)(1) ...................................................................... 6.3
(a)(2) ...................................................................... 6.4
(b) ...................................................................... 2.5
Section 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 29, 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.
Sections 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
Section 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 Section 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
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outstanding Securities of a Series by written notice to the Trustee may on
behalf of all of the 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
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production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
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
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(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;
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
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time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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 Section 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 Section
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 Sections 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 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 Section 310(b) of
the TIA.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 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
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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 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
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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.
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
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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 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 beneficial owners 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
beneficial owners of the outstanding Securities of such Series will not
recognize income, gain or loss for U.S.
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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 Counsel of counsel that
is qualified to practice in Canada or a ruling from the Canada Customs and
Revenue Agency to the effect that beneficial owners 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
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other charge which by law is for the account of the Holders of the outstanding
Securities of the applicable Series.
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;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(f) to establish the form or terms of any Series of Securities as
permitted by Section 2.1 and 2.2 of this Indenture.
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
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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 a
majority in principal amount of the then outstanding Securities of such Series
voting as a single class (including consents 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
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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.
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,
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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 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 Section 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
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Torys LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No: (000) 000-0000
Attn: Xxxxxx Xxxx
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 Section 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 Section
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 Section 312(c).
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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:
(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 Section 314(a)(4)) must comply with the provisions of
TIA Section 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
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liability. The waiver and release are part of the consideration for issuance of
any Series of Securities.
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
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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 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
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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
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: /s/ Xxxxx X.X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X.X. Xxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxx
-------------------------------------------
Name: Xxxxxxx X. Xxx
Title: Chief Financial Officer
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Trust Officer
