Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act: (a) to accept subscriptions for Trust Units received by the Trust and to issue Trust Units pursuant thereto; (b) to maintain books and records; (c) to provide timely reports to Unitholders in accordance with the provisions hereof; (d) to effect payment of distributions to Unitholders; (e) to apply for ARTC; (f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine; (g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person; (h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power; (i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities; (j) to collect, sue for and receive all sums of money coming due to the Trust, xnd to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection; (k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders; (l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust; (m) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted; (n) to pay out of the Trust Fund the Trust Expenses; (o) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture; (p) to guarantee the obligations of the Corporation or any other Affiliate of the Trust pursuant to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust; (q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust; (r) to enter into a subordination agreement with any Lender to the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right to receive income (or any other obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust; (s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry on the business of the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture; (t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act; (u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties; (v) to enter into, perform and enforce the Material Contracts; (w) without limiting any of the provisions hereof, to pay out of the Trust Fund: (i) Agent's Fees and Underwriter's Fees; (ii) the purchase price of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments; (iii) Issue Expenses; and (iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts; (x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust; (y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties; (z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation; (aa) to provide indemnities for the directors and officers of any Affiliates; (bb) to hold the Notes issued by the Corporation; (cc) to distribute Notes as provided in Article 18; (dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and (ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units received by the Trust and to issue Trust Units pursuant thereto;
(b) to maintain books and records;
(c) to provide timely reports to Unitholders in accordance with the provisions hereof;
(d) to effect payment of distributions to Unitholders;
(e) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) to collect, sue xxx for and receive all sums of money coming due to the Trust, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(m) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(o) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(p) to guarantee the obligations of the Corporation or any other Affiliate of the Trust pursuant to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(r) to enter into a subordination agreement with any Lender to the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right to receive income (or any other obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry on the business of the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may shall be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of the NPI and the Direct Royalties Royalties, the Deferred Purchase Price Obligations and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, Trustee without any action or consent by the Unitholders, Unitholders shall have and may exercise at any time and from time to time the following powers and authorities which may or may not be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to review and accept subscriptions for Trust Units received by the Trust Fund and to issue Trust Units pursuant thereto;
(b) to maintain books and recordsissue the Special Voting Unit;
(c) to subscribe for Royalty Units of the Corporation;
d) to issue Units in exchange for Royalty Units tendered to the Trustee in accordance with Article VI;
e) to maintain records and provide timely reports to Unitholders in accordance with the provisions hereofUnitholders;
(df) to effect payment of distributions the cash distributions, special distributions, interest income and to file for and collect ARC, on behalf of the Fund and the Unitholders;
(e) to apply for ARTC;
(fg) to deposit funds of the Trust Fund in interest-bearing accounts in banks, trust companies, the Province of Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted InvestmentsBranches and other depositories, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining appertaining to the ownership of all or any mortgages, or securities, issued or created by, or interest in, any Person, forming part of the assets of the TrustFund, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more personsPersons, which proxies and power powers of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons Persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) except as prohibited by law, to delegate any of the powers and duties of the Trustee to any one or more agents, representatives, officers, employees, independent contractors or other Persons without liability to the Trustee except as provided in this Indenture;
k) to collect, sue xxx for and receive all sums of money coming due to the TrustFund, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the TrustFund, the assets of the Trust Fund or the TrustFund's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(kl) to arrange for insurance contracts and policies insuring the assets of the Trust Fund against any and all risks and insuring the Trust Fund and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person Person arising by reason of any action alleged to have been taken or omitted by the Trust Fund or by the Trustee or Unitholders;
(lm) to cause legal title to any of the assets of the Trust Fund to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, Fund or any other personPerson, on such terms, in such manner, with such powers in such person Person as the Trustee may determine and with or without disclosure that the Trust Fund or the Trustee is interested therein, provided however that should legal title to any of the assets of the Trust Fund be held by and/or in the name of any person Person or Persons other than the Trustee or the TrustTrustee, the Trustee shall require such person Person or Persons to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the TrustFund;
n) to do all such other acts and things as are incidental to the foregoing, and to exercise all powers which are necessary or useful to carry on the business of the Fund, to promote any of the purposes for which the Fund is formed and to carry out the provisions of this Indenture;
o) to use its best efforts to ensure that the Fund complies at all times with the requirements of subsections 108(2) and 132(6) of the Act;
p) to acquire facilities, pipelines or other assets associated with oil and natural gas production, provided they are permitted investments of a "mutual fund trust" under the provisions of subsection 132(6) of the Act;
q) to purchase, otherwise acquire, hold, sell, dispose of, or otherwise deal with any and all Permitted Investments;
r) to borrow, incur indebtedness or give a guarantee on behalf of the Fund or any other Person;
s) to cause the Fund, to the extent of the Trust Fund, to indemnify those directors of the Corporation which the Unitholders cause to be elected to the board of directors of the Corporation in accordance with the terms of the Unanimous Shareholder Agreement;
t) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Fund, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more Persons, which proxies and powers of attorney may be for meetings or actions generally or for any particular meeting or action and may include the exercise of discretionary power and the Trustee shall ensure that the directors of the Corporation be elected or appointed (mor re-elected or re-appointed, as the case may be) at intervals not exceeding eighteen months;
u) when reasonably required, to engage or employ any Persons as agents, representatives, employees or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
v) to accept, hold, renew or extend or participate in the acceptance, holding, renewal or extension of any security upon such terms as may be deemed advisable, and to agree to a reduction in the rate of interest on any security or to any other modification or change in the terms of any security or of any guarantee pertaining thereto, in any manner and to any extent that it may deem advisable; to waive any default in the performance of any covenant or condition of any security or in the performance of any guarantee, or to enforce the rights in respect of any such default in such manner and to such extent as it may deem advisable; to exercise and enforce any and all rights of foreclosure, to bid on property on sale or foreclosure, to take a conveyance in lieu of foreclosure with or without paying any consideration therefor and in connection therewith to relieve the obligation on the covenants secured by such security and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies with respect to any such security or guarantee;
w) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(ox) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation Corporation, the Manager or to any one or more agents, representatives, officers, employees, independent contractors or other persons Persons without liability to the Trustee except as provided in this Trust Indenture;
(py) to guarantee charge, pledge, mortgage, hypothecate or grant any security interest over or with respect to all or any assets of the obligations Fund as may be requested from time to time by lenders in respect of borrowings required by the Fund or the Corporation;
z) to accept subscriptions for Units received by the Fund and to issue additional Units and the Special Voting Unit from time to time in accordance with offering documents and/or as provided in this Trust Indenture, as directed by the Directors of the Corporation or any other Affiliate and, on the request of the Trust pursuant Manager therefor, in satisfaction of the obligation to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental issue Units to the Trust's direct or indirect investment Manager as compensation as provided for in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;Management Agreement; and
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(raa) to enter into a subordination agreement with any Lender lender or lenders to the Corporation or any Affiliate of the Trust pursuant to which the Trust Fund agrees to subordinate its right to receive income (or any other obligations of be paid the Royalty by the Corporation or any Affiliate to the Trust) to the right of any such Lender lender or lenders to be paid obligations owing to it by the Corporation or any Affiliate of the TrustCorporation, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenderslenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilitiesotherwise, none of the Corporation or any such Affiliate will not make any further payments in respect of such obligations the Royalty to the Trust and Fund, or that the Trust Fund will not make any further cash distributions to Unitholders, and each or that in the event any such subordination entered into lenders realize against the assets of the Corporation (including, without limitation, Properties) in connection with collecting upon any of the obligations owing by the Corporation to any of such lenders, whether pursuant to any security granted by the Corporation or otherwise, the Trustee shall be binding upon, and enforceable in accordance with its terms against, release the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry Royalty on the business assets realized upon and the lenders shall be entitled to realize on the assets of the Trust, to promote any Corporation free and clear of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the TrustRoyalty.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, Trustee without any action or consent by the Unitholders, Trust Unitholders shall have and may exercise at any time and from time to time the following powers and authorities which may or may not be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to review and accept subscriptions for Trust Units received by the Trust Fund and to issue Trust Units pursuant thereto;
(b) to maintain books and recordssubscribe for ERC Royalty Units;
(c) to maintain records and provide timely reports to Unitholders in accordance with the provisions hereofTrust Unitholders;
(d) to effect payment of distributions to Trust Unitholders;
(e) to apply act as agent for ARTCthe reinvestment of Cash Distributions distributed by the Trustee pursuant to Section 5.01 and as agent for all voluntary cash contributions for the purchase of additional Trust Units and ERC Royalty Units in accordance with the terms and conditions of any distribution reinvestment and unit subscription plan of the Fund and ERC;
(f) to deposit funds of the Trust Fund in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investmentsand other depositories, including those of the TrusteeTrustee or any Affiliate thereof, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining appertaining to the ownership of all or any mortgages, or securities, issued or created by, or interest in, any person, forming part of the assets of the TrustFund, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power powers of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(h) to borrow, incur indebtedness, give any guarantee or enter into any subordination agreement on behalf of the Fund or any other person, or to charge, pledge, hypothecate or grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Fund in the Trust Fund to any other person;
(i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) except as prohibited by applicable law or in this Indenture, to delegate any of the powers and duties of the Trustee to any one or more agents, representatives, officers, employees, independent contractors or other persons, including, without limitation, to the Corporation and the Advisor as provided in this Indenture and in the Management Agreement, without liability to the Trustee and without regard as to whether such authority is normally granted or delegated by trustees;
(k) to collect, sue xxx for and receive all sums of money coming due to the TrustFund, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust Fund or the TrustFund's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(kl) to arrange for insurance contracts and policies insuring the assets of the Trust Fund against any and all risks and insuring the Trust Fund and/or any or all of the Trustee or the Trust Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust Fund or by the Trustee or Trust Unitholders;
(lm) to cause legal title to any of the assets of the Trust Fund to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, Fund or any other person, on such terms, in such manner, with with, such powers in such person as the Trustee may determine and with or without disclosure that the Trust Fund or the Trustee is interested therein, provided however that should legal title to any of the assets of the Trust Fund be held by and/or in the name of any person or persons other than the Trustee or the TrustTrustee, the Trustee shall require such person or persons to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the TrustFund;
(mn) to use its best efforts to ensure that the Fund complies at all times with the requirements of subsections 108(2) and 132(6) of the INCOME TAX ACT;
(o) to make, execute, acknowledge and deliver deliver, from time to time, as Trustee on behalf of the Fund, any and all agreements, deeds, contracts, waivers, releases or other documents of transfer and any and all other or instruments in writing (including, without limitation, the Material Contracts) necessary or proper for the accomplishment of any of the powers herein granted, and any of such documents in writing so signed shall be binding upon the Fund without further authorization or formality;
(np) to supervise the activities and manage the investments and affairs of the Fund;
(q) to invest funds of the Fund as set forth in Article 4;
(r) to form, acquire, invest in, make loans to or enter into royalty or other agreements with any subsidiary (either direct or indirect) of the Fund;
(s) to renew or extend or participate in the renewal or extension of any security of the Corporation, ERC or any other entity acquired directly or indirectly by the Fund, or any royalty acquired from the Corporation, ERC or any other entity acquired, directly or indirectly, by the Fund, upon such terms as may be deemed advisable, and to agree to any other modification or change in the terms of any such security or royalty, in any manner and to any extent that it may be deemed advisable; to waive any default whether in performance of any covenant or condition of any such security or royalty, or to enforce the rights in respect of any such default in such manner and to such extent that it may be deemed advisable; and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies with respect to any such security or royalty;
(t) to pay out of the Trust Fund all reasonable fees, costs and expenses incurred in the Trust Expenses;administration of the Fund; and
(o) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(p) to guarantee the obligations of the Corporation or any other Affiliate of the Trust pursuant to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(r) to enter into a subordination agreement with any Lender to the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right to receive income (or any other obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(su) to do all such other acts and things as are incidental to this Section 7.2the foregoing, and to exercise all powers which are necessary or useful to carry on the business of the TrustFund, to promote any of the purposes for which the Trust Fund is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained The specific powers and authorities enumerated in this Indenture or other contracts or obligations of the Trustee or the Trust, and Section 6.2 are in addition to any the general powers and authorities granted in Section 6.1 and otherwise herein or by statute and shall not be construed as limiting such general powers or authorities or any other specific power or authority conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, herein on the Trustee, without except that with respect to the exercise of the powers and authorities enumerated below, the Manager is entitled to give directions to the Trustee with respect to the exercise hereof. Subject to any action or consent by specific directions of the UnitholdersManager, the Trustee shall have and may exercise, at any time and from time to time, the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units received by commence, defend, adjust, abandon or settle suits or legal proceedings in connection with the Trust Fund or the Fund Property and to issue Trust Units pursuant theretorepresent the Fund in any such suits or legal proceedings, provided that the Unitholders shall have no power or authority to oblige or require the Trustee to do so and provided further that the Trustee shall not be required to take such action unless it has been funded and indemnified to its satisfaction;
(b) generally to maintain books and recordsexercise any of the powers of an owner with respect to securities or other Fund Property held in the Fund;
(c) to provide timely reports exercise any conversion privileges, subscription rights, warrants or other rights or options available in connection with any securities or other Fund Property at any time held by the Trustee, and to Unitholders in accordance with the provisions hereofmake any payments incidental thereto;
(d) to effect payment of distributions to Unitholders;
(e) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the TrustFund, to the same extent that an individual might, unless otherwise expressly limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or noticepersonally, or waive any notice, either in person by general or by proxy limited proxy, any securities or power of attorneyother Fund Property which may be held by it at any time, with and similarly to exercise personally or without power of substitution, to one by general or more persons, which proxies and by limited power of attorney may be for meetings any right appurtenant to any securities or action generally or for other Fund Property held by it at any particular meeting or action and may include the exercise of discretionary powertime;
(ie) where reasonably requiredto renew or extend or participate in the renewal or extension of any securities or Fund Property, to engage or employ any persons upon such terms as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacitiesit may deem advisable;
(j) to collect, sue for and receive all sums of money coming due to the Trust, xnd to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(mf) to make, execute, acknowledge and deliver any and all deeds, conveyances, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing that may be necessary or proper for the accomplishment of any of the powers herein granted, whether for a term extending beyond the office of the Trustee or beyond the possible termination of the Fund or for a lesser term;
(g) subject to Section 4.3, to the extent permitted by applicable policies, rules or waivers of the Canadian securities regulatory authorities, to
(i) establish a loan facility (the "Loan Facility") to borrow an amount up to 15% of the Total Asset Value of the Fund, calculated at the date of borrowing and as at the end of each calendar quarter;
(ii) borrow money under the Loan Facility for the purposes of buying additional securities or as a temporary measure to fund redemptions of Trust Units or to settle transactions within the Fund; and
(iii) charge, mortgage, hypothecate and/or pledge, free and clear from any and all trusts, Fund Property, to secure payment of any money so borrowed;
(h) to enter into and settle foreign exchange transactions on behalf of the Fund for purposes of:
(i) facilitating settlement of trades of securities or other property of the Fund; and
(ii) upon written instruction of the Manager, for currency hedging or other purposes, and any such transaction may be entered into with such counterparties as the Trustee may choose in its sole discretion including its Affiliates or related parties;
(i) to sell, convey, exchange for other securities or other property, convert, transfer, assign, pledge, encumber or otherwise dispose of any securities or other property held by it at any time, by any means considered reasonable by the Trustee, and to receive the consideration and grant discharges therefor;
(j) to incur and pay out of the property of the Fund any charges or expenses and disburse any funds of the Fund, which charges, expenses or disbursements are, in the opinion of the Trustee, necessary or incidental to or desirable for the carrying out of any of the purposes of the Fund or conducting the business of the Fund and are properly payable by the Fund including, without limitation, taxes or other governmental levies, brokerage commissions, security transfer taxes and other charges arising from the purchase and sale of securities by the Fund, accounting and valuation costs, audit and legal fees, the cost of preparing and submitting financial statements to Unitholders and the cost of preparing a prospectus and other disclosure documents and assessments of whatever kind or nature, imposed upon or against the Trustee in connection with the Fund or the property of the Fund or upon or against the property of the Fund or any part thereof and for any of the purposes herein;
(k) to accept subscriptions for Trust Units and to issue Trust Units in respect thereof;
(l) to maintain books and records for the Fund;
(m) to employ, at the Fund's expense, such counsel, auditors, advisors, agents or other Persons as the Trustee may deem necessary from time to time for the purpose of discharging its duties hereunder;
(n) to pay out delegate any of the Trust Fund the Trust Expenses;
(o) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or Manager and, with prior authorization of the Manager, to any one or more Investment Advisor, agents, representatives, officers, employees, independent contractors or or, other persons Person (including its Affiliates), all without liability to the Trustee except as provided Trustee;
(o) to determine upon the direction of the Manager all questions and matters of doubt which may arise in this Indenture;the course of the administration of the Fund or distribution of the Fund Property or upon the dissolution and termination of the Fund in accordance with the terms and conditions herein to the extent that such matters are not otherwise dealt with herein; and
(p) to guarantee the obligations of the Corporation or any other Affiliate of the Trust pursuant to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(r) to enter into a subordination agreement with any Lender to the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right to receive income (or any other obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(s) to do all other such other acts and things as are incidental to this Section 7.2the foregoing, and to exercise all powers which are necessary or useful to carry on the business of the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that hereof and the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) duties of the Tax Act;
(u) to advance Trustee prescribed herein. The exercise of any amount to one or more of the Corporation foregoing powers or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable combination thereof in accordance with its terms against, this Trust Agreement from time to time shall not be deemed to exhaust the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary rights of the Trust for the purpose Trustee to exercise such power or powers or combination of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) them thereafter from time to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trusttime.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units received by the Trust and to issue Trust Units pursuant thereto;
(b) to maintain books and records;
(c) to provide timely reports to Unitholders in accordance with the provisions hereof;
(d) to effect payment of distributions to Unitholders;
(e) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any Credit Agreement and any other obligations on behalf of the Trust; or enter into any subordination or postponement agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate or postpone the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) to collect, sue for and receive all sums of money coming due to the TrustTrxxx, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(m) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(o) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(p) to guarantee or become an indemnitor or surety for the obligations obligations, indebtedness or liabilities of the Corporation or any other Affiliate of the Trust Trust, including, without limitation, pursuant to any Credit Agreement or any other debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging to pledge securities issued by the Corporation or the Affiliate, as the case may be, or grant security interests over all or any portion of the Trust Fund, as security for such guarantee guarantee, indemnity or surety provided that such guarantee guarantee, indemnity or surety is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee guarantee, indemnity or surety entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2Indenture, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any Credit Agreement or any other agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(r) to enter into a subordination or postponement agreement with any Lender to the Trust, the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right or postpone indebtedness owing to receive income (it or any other obligations of the Corporation security interests granted to it to indebtedness or any Affiliate to the Trust) to the right security interests of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the TrustLender, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination or postponement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry on the business of the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may shall be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of the NPI and the Direct Royalties Royalties, the Deferred Purchase Price Obligations and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 8.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of lawlaw or which may be authorized from time to time by Ordinary Resolution or by Special Resolution, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units received by the Trust open, operate and close accounts and other similar credit, deposit and banking arrangements and to issue Trust Units pursuant theretonegotiate and sign banking and financing contracts and agreements;
(b) to borrow money and request the issuance of letters of credit upon the credit of the Trust and the Trust Fund;
(c) to maintain books and records;
(cd) to provide timely reports to Unitholders in accordance with the provisions hereof;
(de) to effect payment payments of distributions to Unitholders;
(ef) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determineRoyalty Tax Credits;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person temporarily hold cash and other short term investments in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, and for the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf purposes of the Trust; or enter into any subordination agreement on behalf 's activities, including paying administration and other expenses of the Trust, paying amounts required in connection with the redemption of Trust or any other person, Units and making distributions to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other personUnitholders;
(h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) to collect, sue xxx for and receive all sums of money coming due to the Trust, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, mediation, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(m) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(o) to invest, hold shares, trust units, beneficial interests, partnership interests, joint venture interests or other interests in any person necessary or useful to carry out the purpose of the Trust;
(p) to determine conclusively the allocation to capital, income or other appropriate accounts of all receipts, expenses and disbursements of the Trust;
(q) to determine, among other things, the amount of the Net Income of the Trust and the Net Realized Capital Gains for the purposes of distributions hereunder and to arrange for distributions to Unitholders pursuant to Article 5 hereof;
(r) to enter into any agreement or instrument (including any firm or best efforts underwriting agreement, warrant agreement or other Offering Document) relating to a proposed Offering, to cause any securities issued in connection with such Offering to be issued for such consideration (in cash or property in kind) as the Trustee, in its discretion, may deem appropriate and to generally do all things in relation to a proposed Offering as the Trustee, in its discretion, may deem appropriate;
(s) to cause securities of the Trust to be issued for such consideration as the Trustee, in its sole discretion, may deem appropriate and to do such things and prepare and sign such documents, including any Offering Document, to qualify such securities for sale in whatever jurisdictions they are to be sold or offered for sale;
(t) to issue or provide for the issuance of Trust Units on terms and conditions and at such time or times as the Trustee may determine, including issuances in accordance with Section 5.9 and issuances in connection with unitholder rights plans, incentive plans, and other plans established under Section 5.12;
(u) to redeem or repurchase Trust Units in accordance with the terms set forth in this Indenture;
(v) to make or cause to be made application for the listing or quotation on any stock exchange or market of any Trust Units or other securities of the Trust, and to do all things which in the opinion of the Trustee may be necessary or desirable to effect or maintain such listing or listings or quotation;
(w) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(px) without limit as to guarantee amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money from any person or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and from time to time, to draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments and evidences of indebtedness, and securing the payment of any present or future obligations of the Corporation Trust and interest thereon and to charge, hypothecate, mortgage, pledge and assign pursuant to Section 426 of the Bank Act (Canada) or otherwise, or by way of fixed or floating charge debentures, deeds of trust, general security agreements or otherwise, all or any other Affiliate part of the assets of the Trust pursuant owned or subsequently acquired or to assign any debt for borrowed money owing or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to be owing to the Trust's direct or indirect investment Trust and to engage in the Corporation or any such Affiliate or the business and affairs (existing or proposed) other means of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trustfinancing;
(qy) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.28.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(rz) to provide or cause to be provided to any bank, creditor, financial institution or any other person such guarantees, indemnities, postponements and subordinations, acknowledgements, assurances or other credit support, in any form whatsoever, as the Trustee, in its sole discretion, deems necessary, useful or desirable in connection with the establishment or arrangement of any and all debt or equity financings of affiliates and associates of the Trust, including any extensions, renewals, refinancings or replacements thereof, and to enter into any agreement, indenture, instrument or other document on such terms and conditions as the Trustee, in its sole discretion, may deem appropriate in the circumstances in connection with such financings;
(aa) to give a guarantee on behalf of the Trust to secure performance of an obligation of another person;
(bb) to renew or extend or participate in the renewal or extension of any security, upon such terms as may be deemed advisable, and to agree to an increase or reduction in the rate of interest (or to agree to a waiver of interest) on any security or to any other modification or change in the terms of any security or of any guarantee pertaining thereto, in any manner and to any extent that it may deem advisable; and to waive any default whether in performance of any covenant or condition of any security, or in the performance of any guarantee or to enforce the rights in respect of any such default in such manner and to such extent that it may deem advisable;
(cc) to exercise and enforce any and all rights of foreclosure, to bid on property on sale or foreclosure, to take a conveyance in lieu of foreclosure with or without paying a consideration therefor and in connection therewith to revive the obligation on the covenants secured by such security and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies with respect to any such security or guarantee;
(dd) to postpone and subordinate, in right of payment, all present and future indebtedness, liabilities and obligations of a person owed to the Trust to payment in full of all present and future indebtedness, liabilities and obligations of such person to lenders and other creditors of such person, and to enter into any agreement or instrument to create or provide for such postponement and subordination agreement with in favour of such lenders and creditors;
(ee) to indemnify, out of the Trust Fund, any Lender person against any and all liabilities, claims, actions, causes of action, judgments, orders, damages (including foreseeable consequential damages), costs, expenses, fines, penalties and losses (including sums paid by such person in settlement of claims and all reasonable consultant, expert and legal fees and expenses) or any resulting damages, harm or injuries to such person or property of any third parties arising from the affairs of the Trust;
(ff) to advance any amount to the Corporation or any other Affiliate of the Trust pursuant as a loan;
(gg) to which obtain security, including encumbrances on assets, to secure the full payment of money owed to the Trust agrees to subordinate its right to receive income (or any other and the performance of obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate in favour of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry on of the business rights of the Trust, and to promote any perform all of the purposes for which obligations of the Trust is formed and to carry out the provisions of this Indentureunder such security;
(thh) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) and paragraph 132(7)(a) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(wii) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agentthe fees payable to the Corporation's Fees and Underwriter's Fees;advisors in connection with the Arrangement; and
(ii) all reasonable fees, costs and expenses incurred, from time to time, in the purchase price management and administration of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust ReorganizationTrust; all as contemplated by the Offering DocumentsInformation Circular, this Indenture, the Administration Agreement or the other Material Contractsany Offering Document;
(xjj) to chargeprovide indemnities for the directors and officers of the Corporation or any Affiliates;
(kk) without limiting any of the provisions hereof, mortgage, hypothecate and/or pledge on behalf to pay out of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties Underwriters' Fees payable in connection with any security to or realization by any Lender upon the PropertiesOffering;
(zll) for the purpose of managing the Trust, to engage for hedging purposes in rate swap transactions, basis swaps, forward rate transactions, commodity swaps, commodity options, equity or equity index swaps, equity or equity index options, bond options, interest rate options, foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options or any other similar transaction (including any option with respect to any of such transactions) or any combination of such transactions; (mm) to form any direct or indirect subsidiary of the Trust for the purpose of making purchasing or acquiring any Subsequent Investment assets and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, Trustee without any action or consent by the Unitholders, Unitholders shall have and may exercise at any time and from time to time the following powers and authorities which may or may not be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to review and accept subscriptions for Trust Units received by the Trust Fund and to issue Trust Units pursuant thereto;
(b) to maintain books and recordsissue the Special Voting Unit;
(c) to subscribe for Royalty Units of the Corporation;
d) to issue Units in exchange for Royalty Units tendered to the Trustee in accordance with Article VI;
e) to maintain records and provide timely reports to Unitholders in accordance with the provisions hereofUnitholders;
(df) to effect payment of distributions the cash distributions, special distributions, interest income and to file for and collect ARC, on behalf of the Fund and the Unitholders;
(e) to apply for ARTC;
(fg) to deposit funds of the Trust Fund in interest-bearing accounts in banks, trust companies, the Province of Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted InvestmentsBranches and other depositories, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining appertaining to the ownership of all or any mortgages, or securities, issued or created by, or interest in, any Person, forming part of the assets of the TrustFund, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more personsPersons, which proxies and power powers of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons Persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) except as prohibited by law, to delegate any of the powers and duties of the Trustee to any one or more agents, representatives, officers, employees, independent contractors or other Persons without liability to the Trustee except as provided in this Indenture;
k) to collect, sue for and receive all sums of money coming due to the TrustXxxd, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the TrustFund, the assets of the Trust Fund or the TrustFund's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(kl) to arrange for insurance contracts and policies insuring the assets of the Trust Fund against any and all risks and insuring the Trust Fund and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person Person arising by reason of any action alleged to have been taken or omitted by the Trust Fund or by the Trustee or Unitholders;
(lm) to cause legal title to any of the assets of the Trust Fund to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, Fund or any other personPerson, on such terms, in such manner, with such powers in such person Person as the Trustee may determine and with or without disclosure that the Trust Fund or the Trustee is interested therein, provided however that should legal title to any of the assets of the Trust Fund be held by and/or in the name of any person Person or Persons other than the Trustee or the TrustTrustee, the Trustee shall require such person Person or Persons to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the TrustFund;
n) to do all such other acts and things as are incidental to the foregoing, and to exercise all powers which are necessary or useful to carry on the business of the Fund, to promote any of the purposes for which the Fund is formed and to carry out the provisions of this Indenture;
o) to use its best efforts to ensure that the Fund complies at all times with the requirements of subsections 108(2) and 132(6) of the Act;
p) to acquire facilities, pipelines or other assets associated with oil and natural gas production, provided they are permitted investments of a "mutual fund trust" under the provisions of subsection 132(6) of the Act;
q) to purchase, otherwise acquire, hold, sell, dispose of, or otherwise deal with any and all Permitted Investments;
r) to borrow, incur indebtedness or give a guarantee on behalf of the Fund or any other Person;
s) to cause the Fund, to the extent of the Trust Fund, to indemnify those directors of the Corporation which the Unitholders cause to be elected to the board of directors of the Corporation in accordance with the terms of the Unanimous Shareholder Agreement;
t) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Fund, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more Persons, which proxies and powers of attorney may be for meetings or actions generally or for any particular meeting or action and may include the exercise of discretionary power and the Trustee shall ensure that the directors of the Corporation be elected or appointed (mor re-elected or re-appointed, as the case may be) at intervals not exceeding eighteen months;
u) when reasonably required, to engage or employ any Persons as agents, representatives, employees or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
v) to accept, hold, renew or extend or participate in the acceptance, holding, renewal or extension of any security upon such terms as may be deemed advisable, and to agree to a reduction in the rate of interest on any security or to any other modification or change in the terms of any security or of any guarantee pertaining thereto, in any manner and to any extent that it may deem advisable; to waive any default in the performance of any covenant or condition of any security or in the performance of any guarantee, or to enforce the rights in respect of any such default in such manner and to such extent as it may deem advisable; to exercise and enforce any and all rights of foreclosure, to bid on property on sale or foreclosure, to take a conveyance in lieu of foreclosure with or without paying any consideration therefor and in connection therewith to relieve the obligation on the covenants secured by such security and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies with respect to any such security or guarantee;
w) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(ox) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation Corporation, the Manager or to any one or more agents, representatives, officers, employees, independent contractors or other persons Persons without liability to the Trustee except as provided in this Trust Indenture;
(py) to guarantee charge, pledge, mortgage, hypothecate or grant any security interest over or with respect to all or any assets of the obligations Fund as may be requested from time to time by lenders in respect of borrowings required by the Fund or the Corporation;
z) to accept subscriptions for Units received by the Fund and to issue additional Units and the Special Voting Unit from time to time in accordance with offering documents and/or as provided in this Trust Indenture, as directed by the Directors of the Corporation or any other Affiliate and, on the request of the Trust pursuant Manager therefor, in satisfaction of the obligation to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental issue Units to the Trust's direct or indirect investment Manager as compensation as provided for in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;Management Agreement; and
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(raa) to enter into a subordination agreement with any Lender lender or lenders to the Corporation or any Affiliate of the Trust pursuant to which the Trust Fund agrees to subordinate its right to receive income (or any other obligations of be paid the Royalty by the Corporation or any Affiliate to the Trust) to the right of any such Lender lender or lenders to be paid obligations owing to it by the Corporation or any Affiliate of the TrustCorporation, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenderslenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilitiesotherwise, none of the Corporation or any such Affiliate will not make any further payments in respect of such obligations the Royalty to the Trust and Fund, or that the Trust Fund will not make any further cash distributions to Unitholders, and each or that in the event any such subordination entered into lenders realize against the assets of the Corporation (including, without limitation, Properties) in connection with collecting upon any of the obligations owing by the Corporation to any of such lenders, whether pursuant to any security granted by the Corporation or otherwise, the Trustee shall be binding upon, and enforceable in accordance with its terms against, release the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry Royalty on the business assets realized upon and the lenders shall be entitled to realize on the assets of the Trust, to promote any Corporation free and clear of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the TrustRoyalty.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of lawlaw or which may be authorized from time to time by Ordinary Resolution or by Special Resolution, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units received by the Trust open, operate and close accounts and other similar credit, deposit and banking arrangements and to issue Trust Units pursuant theretonegotiate and sign banking and financing contracts and agreements;
(b) to borrow money and request the issuance of letters of credit upon the credit of the Trust and the Trust Fund;
(c) to maintain books and records;
(cd) to provide timely reports to Unitholders in accordance with the provisions hereof;
(de) to effect payment payments of distributions to Unitholders;
(ef) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determineRoyalty Tax Credits;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person temporarily hold cash and other short term investments in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, and for the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf purposes of the Trust; or enter into any subordination agreement on behalf 's activities, including paying administration and other expenses of the Trust, paying amounts required in connection with the redemption of Trust or any other person, Units and making distributions to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other personUnitholders;
(h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) to collect, sue xxx for and receive all sums of money coming due to the Trust, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, mediation, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(m) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(o) to invest, hold shares, trust units, beneficial interests, partnership interests, joint venture interests or other interests in any person necessary or useful to carry out the purpose of the Trust;
(p) to determine conclusively the allocation to capital, income or other appropriate accounts of all receipts, expenses and disbursements of the Trust;
(q) to determine, among other things, the amount of the Net Income of the Trust and the Net Realized Capital Gains for the purposes of distributions hereunder and to arrange for distributions to Unitholders pursuant to hereof;
(r) to enter into any agreement or instrument (including any firm or best efforts underwriting agreement, warrant agreement or other Offering Document) relating to a proposed Offering, to cause any securities issued in connection with such Offering to be issued for such consideration (in cash or property in kind) as the Trustee, in its discretion, may deem appropriate and to generally do all things in relation to a proposed Offering as the Trustee, in its discretion, may deem appropriate;
(s) to cause securities of the Trust to be issued for such consideration as the Trustee, in its sole discretion, may deem appropriate and to do such things and prepare and sign such documents, including any Offering Document, to qualify such securities for sale in whatever jurisdictions they are to be sold or offered for sale;
(t) to issue or provide for the issuance of Trust Units on terms and conditions and at such time or times as the Trustee may determine, including issuances in accordance with Section and issuances in connection with unitholder rights plans, incentive plans, and other plans established under Section ;
(u) to redeem or repurchase Trust Units in accordance with the terms set forth in this Indenture;
(v) to make or cause to be made application for the listing or quotation on any stock exchange or market of any Trust Units or other securities of the Trust, and to do all things which in the opinion of the Trustee may be necessary or desirable to effect or maintain such listing or listings or quotation;
(w) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(px) without limit as to guarantee amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money from any person or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and from time to time, to draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments and evidences of indebtedness, and securing the payment of any present or future obligations of the Corporation Trust and interest thereon and to charge, hypothecate, mortgage, pledge and assign pursuant to Section 426 of the Bank Act (Canada) or otherwise, or by way of fixed or floating charge debentures, deeds of trust, general security agreements or otherwise, all or any other Affiliate part of the assets of the Trust pursuant owned or subsequently acquired or to assign any debt for borrowed money owing or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to be owing to the Trust's direct or indirect investment Trust and to engage in the Corporation or any such Affiliate or the business and affairs (existing or proposed) other means of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trustfinancing;
(qy) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(rz) to provide or cause to be provided to any bank, creditor, financial institution or any other person such guarantees, indemnities, postponements and subordinations, acknowledgements, assurances or other credit support, in any form whatsoever, as the Trustee, in its sole discretion, deems necessary, useful or desirable in connection with the establishment or arrangement of any and all debt or equity financings of affiliates and associates of the Trust, including any extensions, renewals, refinancings or replacements thereof, and to enter into any agreement, indenture, instrument or other document on such terms and conditions as the Trustee, in its sole discretion, may deem appropriate in the circumstances in connection with such financings;
(aa) to give a guarantee on behalf of the Trust to secure performance of an obligation of another person;
(bb) to renew or extend or participate in the renewal or extension of any security, upon such terms as may be deemed advisable, and to agree to an increase or reduction in the rate of interest (or to agree to a waiver of interest) on any security or to any other modification or change in the terms of any security or of any guarantee pertaining thereto, in any manner and to any extent that it may deem advisable; and to waive any default whether in performance of any covenant or condition of any security, or in the performance of any guarantee or to enforce the rights in respect of any such default in such manner and to such extent that it may deem advisable;
(cc) to exercise and enforce any and all rights of foreclosure, to bid on property on sale or foreclosure, to take a conveyance in lieu of foreclosure with or without paying a consideration therefor and in connection therewith to revive the obligation on the covenants secured by such security and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies with respect to any such security or guarantee;
(dd) to postpone and subordinate, in right of payment, all present and future indebtedness, liabilities and obligations of a person owed to the Trust to payment in full of all present and future indebtedness, liabilities and obligations of such person to lenders and other creditors of such person, and to enter into any agreement or instrument to create or provide for such postponement and subordination agreement with in favour of such lenders and creditors;
(ee) to indemnify, out of the Trust Fund, any Lender person against any and all liabilities, claims, actions, causes of action, judgments, orders, damages (including foreseeable consequential damages), costs, expenses, fines, penalties and losses (including sums paid by such person in settlement of claims and all reasonable consultant, expert and legal fees and expenses) or any resulting damages, harm or injuries to such person or property of any third parties arising from the affairs of the Trust;
(ff) to advance any amount to the Corporation or any other Affiliate of the Trust pursuant as a loan;
(gg) to which obtain security, including encumbrances on assets, to secure the full payment of money owed to the Trust agrees to subordinate its right to receive income (or any other and the performance of obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate in favour of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry on of the business rights of the Trust, and to promote any perform all of the purposes for which obligations of the Trust is formed and to carry out the provisions of this Indentureunder such security;
(thh) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) and paragraph 132(7)(a) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(wii) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agentthe fees payable to the Corporation's Fees and Underwriter's Fees;advisors in connection with the Arrangement; and
(ii) all reasonable fees, costs and expenses incurred, from time to time, in the purchase price management and administration of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust ReorganizationTrust; all as contemplated by the Offering DocumentsInformation Circular, this Indenture, the Administration Agreement or the other Material Contractsany Offering Document;
(xjj) to chargeprovide indemnities for the directors and officers of the Corporation or any Affiliates;
(kk) without limiting any of the provisions hereof, mortgage, hypothecate and/or pledge on behalf to pay out of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties Underwriters' Fees payable in connection with any security to or realization by any Lender upon the PropertiesOffering;
(zll) for the purpose of managing the Trust, to engage for hedging purposes in rate swap transactions, basis swaps, forward rate transactions, commodity swaps, commodity options, equity or equity index swaps, equity or equity index options, bond options, interest rate options, foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options or any other similar transaction (including any option with respect to any of such transactions) or any combination of such transactions;
(mm) to form any direct or indirect subsidiary of the Trust for the purpose of making purchasing or acquiring any Subsequent Investment assets and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aann) to provide indemnities do all such things and take all such action, and to negotiate, make, execute, acknowledge and deliver any and all deeds, instruments, contracts, waivers, releases or other documents, necessary or useful for the directors and officers of exercise or accomplishment of: (i) any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
powers herein granted to the Trustee, (eeii) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred as set forth in Section , and (iii) all of the rights and obligations of the Trustee hereunder; including, without limitation, the negotiation and execution of the Administration Agreement and agreements in connection with the Trust's acquisition of the Series A Notes and the CT Note, the administration of the Trust and for any Offering;
(oo) to enter into, perform and enforce contracts of the Trust; and
(pp) to do all such purposes may drawother acts and things as are necessary, makeuseful, execute and issue promissory notes and other negotiable and non-negotiable instruments incidental or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing ancillary to the Trust foregoing, and to exercise all powers which are necessary, useful, incidental or engage in any other means ancillary to carry on the affairs of financing the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture.
Appears in 1 contract
Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 8.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment judgement and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units and Special Voting Units received by the Trust and to issue Trust Units and Special Voting Units pursuant thereto;
(b) to maintain books and records;
(c) to provide timely reports to Unitholders in accordance with the provisions hereof;
(d) to effect payment of distributions to Unitholders;
(e) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any other obligations on behalf of the Trust; or enter into any subordination agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate the interests of the Trust in the Trust Fund to any other person;
(he) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise expressly limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary powerpower and the Trustee shall vote its Corporation Common Shares in favor of the election of the nominee directors approved by the Unitholders and in accordance with the Unanimous Shareholder Agreement;
(if) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(jg) to collect, sue xxx for and receive all sums of money coming due to the Trust, xnd and to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's ’s affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, mediation, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(kh) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(li) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(mj) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(nk) to pay out of the Trust Fund the Trust Expenses;
(ol) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation Corporation, the Administrator or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(p) to guarantee the obligations of the Corporation or any other Affiliate of the Trust pursuant to any debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging securities issued by the Corporation or the Affiliate, as the case may be, as security for such guarantee provided that such guarantee is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(qm) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.28.2, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunderhereunder and compliance with any agreement of subordination entered into by the Trustee on behalf of the Trust with any Lender in respect of the Trust or any other amount owing by the Corporation to the Trust, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(r) to enter into a subordination agreement with any Lender to the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right to receive income (or any other obligations of the Corporation or any Affiliate to the Trust) to the right of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the Trust, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(sn) to do all such other acts and things as are incidental to this Section 7.28.2, and to exercise all powers which are necessary or useful to carry on the business of the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(to) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may be advanced to the Corporation to finance future acquisition and development of the Properties;
(vp) to enter into, perform and enforce the Material Contracts;
(wq) to advance any amount to the Corporation as a loan;
(r) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Feesthe fees payable to the Corporation’s advisors in connection with the Arrangement;
(ii) the purchase price of Direct Royalties and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
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Specific Powers and Authorities. Subject only to the express limitations contained in this Indenture or other contracts or obligations of the Trustee or the Trust, and in addition to any powers and authorities conferred by this Indenture (including, without limitation, Section 7.1 hereof) or which the Trustee may have by virtue of any present or future statute or rule of law, the Trustee, without any action or consent by the Unitholders, shall have the following powers and authorities which may be exercised by it from time to time or delegated by it, as herein provided, in its sole judgment and discretion and in such manner and upon such terms and conditions as it may from time to time deem proper, provided that the exercise of such powers and authorities does not adversely affect the status of the Trust as a "unit trust" and a "mutual fund trust" for the purposes of the Tax Act:
(a) to accept subscriptions for Trust Units received by the Trust and to issue Trust Units pursuant thereto;
(b) to maintain books and records;
(c) to provide timely reports to Unitholders in accordance with the provisions hereof;
(d) to effect payment of distributions to Unitholders;
(e) to apply for ARTC;
(f) to deposit funds of the Trust in interest-bearing accounts in banks, the Alberta Treasury Branch or trust companies whose short term obligations constitute Permitted Investments, including those of the Trustee, the same to be subject to withdrawal on such terms and in such manner and by such person or persons (including any one or more officers, agents or representatives) as the Trustee may determine;
(g) to, directly or indirectly, borrow money from or incur indebtedness to any person and in connection therewith, to guarantee, indemnify or act as a surety with respect to payment or performance of any indebtedness, liabilities or obligation of any kind of any person, including, without limitation, the Corporation and any subsidiary of the Trust (as defined in the SECURITIES ACT (Alberta)); to enter into any Credit Agreement and any other obligations on behalf of the Trust; or enter into any subordination or postponement agreement on behalf of the Trust or any other person, and to assign, charge, pledge, hypothecate, convey, transfer, mortgage, subordinate, and grant any security interest, mortgage or encumbrance over or with respect to all or any of the Trust Fund or to subordinate or postpone the interests of the Trust in the Trust Fund to any other person;
(h) to possess and exercise all the rights, powers and privileges pertaining to the ownership of all or any part of the assets of the Trust, to the same extent that an individual might, unless otherwise limited herein, and, without limiting the generality of the foregoing, to vote or give any consent, request or notice, or waive any notice, either in person or by proxy or power of attorney, with or without power of substitution, to one or more persons, which proxies and power of attorney may be for meetings or action generally or for any particular meeting or action and may include the exercise of discretionary power;
(i) where reasonably required, to engage or employ any persons as agents, representatives, employees administrator, consultants or independent contractors (including, without limitation, investment advisers, registrars, underwriters, accountants, lawyers, appraisers, brokers or otherwise) in one or more capacities;
(j) to collect, sue for and receive all sums of money coming due to the Trust, xnd xxd to engage in, intervene in, prosecute, join, defend, compromise, abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes, claims, demands or other litigation relating to the Trust, the assets of the Trust or the Trust's affairs, to enter into agreements therefor, whether or not any suit is commenced or claim accrued or asserted and, in advance of any controversy, to enter into agreements regarding the arbitration, adjudication or settlement thereof, provided that prior to taking any such action the Trustee may require from the Corporation a specific indemnity in relation thereto and funding with respect to the expenses or costs associated with such action. The Trustee shall in any event be reimbursed by the Corporation for all costs and expenses incurred in respect of the matters provided for in this Subsection;
(k) to arrange for insurance contracts and policies insuring the assets of the Trust against any and all risks and insuring the Trust and/or any or all of the Trustee or the Unitholders against any and all claims and liabilities of any nature asserted by any person arising by reason of any action alleged to have been taken or omitted by the Trust or by the Trustee or Unitholders;
(l) to cause legal title to any of the assets of the Trust to be held by and/or in the name of the Trustee, or except as prohibited by law, by and/or in the name of the Trust, or any other person, on such terms, in such manner, with such powers in such person as the Trustee may determine and with or without disclosure that the Trust or the Trustee is interested therein, provided that should legal title to any of the assets of the Trust be held by and/or in the name of any person other than the Trustee or the Trust, the Trustee shall require such person to execute a trust agreement acknowledging that legal title to such assets is held in trust for the benefit of the Trust;
(m) to make, execute, acknowledge and deliver any and all deeds, contracts, waivers, releases or other documents of transfer and any and all other instruments in writing necessary or proper for the accomplishment of any of the powers herein granted;
(n) to pay out of the Trust Fund the Trust Expenses;
(o) except as prohibited by law, to delegate any or all of the management and administrative powers and duties of the Trustee to the Corporation or to any one or more agents, representatives, officers, employees, independent contractors or other persons without liability to the Trustee except as provided in this Indenture;
(p) to guarantee or become an indemnitor or surety for the obligations obligations, indebtedness or liabilities of the Corporation or any other Affiliate of the Trust Trust, including, without limitation, pursuant to any Credit Agreement or any other debt for borrowed money or obligations resulting or arising from hedging instruments incurred by the Corporation or any such Affiliate, as the case may be, and pledging to pledge securities issued by the Corporation or the Affiliate, as the case may be, or grant security interests over all or any portion of the Trust Fund, as security for such guarantee guarantee, indemnity or surety provided that such guarantee guarantee, indemnity or surety is incidental to the Trust's direct or indirect investment in the Corporation or any such Affiliate or the business and affairs (existing or proposed) of the Corporation or any such Affiliate, and each such guarantee guarantee, indemnity or surety entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(q) notwithstanding any limitations contained in this Indenture or any other contracts or obligations of the Trustee or the Trust and the introductory proviso to this Section 7.2Indenture, to enter into on behalf of the Trust and observe and perform its obligations and the obligations of the Trust under any Credit Agreement or any other agreements with any Lender, including, without limitation, compliance with any provisions thereof which may restrict the powers of the Trustee hereunder or preclude the Trustee from acting in certain circumstances on resolutions of the Unitholders as might otherwise be provided for hereunder, and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(r) to enter into a subordination or postponement agreement with any Lender to the Trust, the Corporation or any Affiliate of the Trust pursuant to which the Trust agrees to subordinate its right or postpone indebtedness owing to receive income (it or any other obligations of the Corporation security interests granted to it to indebtedness or any Affiliate to the Trust) to the right security interests of any such Lender to be paid obligations owing to it by the Corporation or any Affiliate of the TrustLender, and which agreement may further provide, without limitation, that in the event of a default by the Corporation or any such Affiliate to any of its Lenders, including any such default in connection with credit or debt facilities, swap or hedging agreements or any other ancillary facilities, none of the Corporation or any such Affiliate will make any further payments in respect of such obligations to the Trust and the Trust will not make any further cash distributions to Unitholders, and each such subordination or postponement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(s) to do all such other acts and things as are incidental to this Section 7.2, and to exercise all powers which are necessary or useful to carry on the business of the Trust, to promote any of the purposes for which the Trust is formed and to carry out the provisions of this Indenture;
(t) to use reasonable efforts to ensure that the Trust complies at all times with the requirements of Subsections 108(2) and 132(6) of the Tax Act;
(u) to advance any amount to the Corporation or any other Affiliate of the Trust as a loan, including amounts in the Capital Fund which may shall be advanced to the Corporation to finance future acquisition and development of the Properties;
(v) to enter into, perform and enforce the Material Contracts;
(w) without limiting any of the provisions hereof, to pay out of the Trust Fund:
(i) Agent's Fees and Underwriter's Fees;
(ii) the purchase price of the NPI and the Direct Royalties Royalties, the Deferred Purchase Price Obligations and amounts in respect of Permitted Investments and Subsequent Investments;
(iii) Issue Expenses; and
(iv) all expenses incurred in connection with the Plan of Arrangement and the Trust Reorganization; all as contemplated by the Offering Documents, this Indenture, or the other Material Contracts;
(x) to charge, mortgage, hypothecate and/or pledge on behalf of the Trust all or any of the currently owned or subsequently acquired monies, properties and assets comprising the Trust Fund to secure any monies borrowed, and to execute and deliver a guarantee or other assurance in favour of any Lender for the obligations of the Corporation, or any Affiliate of the Trust, the Corporation and any security, deposit or offset agreements or arrangements in respect of any such guarantee or assurance and each such agreement entered into by the Trustee shall be binding upon, and enforceable in accordance with its terms against, the Trust;
(y) to convey the Direct Royalties in connection with any security to or realization by any Lender upon the Properties;
(z) to form any subsidiary of the Trust for the purpose of making any Subsequent Investment and entering into or amending any unanimous shareholders agreement or other agreement on such terms as may be approved by the board of directors of the Corporation;
(aa) to provide indemnities for the directors and officers of any Affiliates;
(bb) to hold the Notes issued by the Corporation;
(cc) to distribute Notes as provided in Article 18;
(dd) to vote Subsequent Investments held by the Trust which carry voting rights in such manner as may be approved by the board of directors of the Corporation; and
(ee) without limit as to amount, cost, or conditions of reimbursement, to issue any type of debt securities or convertible debt securities and to borrow money or incur any other form of indebtedness for the purpose of carrying out the purposes of the Trust or for other expenses incurred in connection with the Trust and for such purposes may draw, make, execute and issue promissory notes and other negotiable and non-negotiable instruments or securities and evidences of indebtedness, secure the payment of sums so borrowed or indebtedness incurred and mortgage, pledge, assign or grant a security interest in any money owing to the Trust or engage in any other means of financing the Trust.
Appears in 1 contract
