TRUST INDENTURE DATED AS OF THE 17TH DAY OF DECEMBER, 2002 AMONG ACCLAIM ENERGY TRUST AND ACCLAIM ENERGY INC. AND COMPUTERSHARE TRUST COMPANY OF CANADA PROVIDING FOR THE ISSUE OF DEBENTURES
Exhibit
99.1
|
DATED
AS OF THE 17TH
DAY OF DECEMBER, 2002
AMONG
ACCLAIM
ENERGY TRUST
AND
ACCLAIM
ENERGY INC.
AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
PROVIDING
FOR THE ISSUE OF DEBENTURES
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TABLE
OF CONTENTS
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Page
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ARTICLE 1
INTERPRETATION
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1
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1.1
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Definitions
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1
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1.2
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Meaning
of "Outstanding"
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6
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1.3
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Interpretation
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7
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1.4
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Headings
Etc.
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7
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1.5
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Day
not a Business Day
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7
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1.6
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Applicable
Law
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7
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1.7
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Monetary
References
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7
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1.8
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Invalidity,
Etc.
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7
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1.9
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Language
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8
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1.10
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Successors
and Assigns
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8
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1.11
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Benefits
of Indenture
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8
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1.12
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References
to Acts of the Trust
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8
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ARTICLE 2
THE DEBENTURES
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8
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2.1
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Limit
of Debentures
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8
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2.2
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Terms
of Debentures of any Series
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8
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2.3
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Form
of Debentures
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9
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2.4
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Form
and Terms of Initial Debentures
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10
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2.5
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Certification
and Delivery of Additional Debentures
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13
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2.6
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Issue
of Global Debentures
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14
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2.7
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Execution
of Debentures
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15
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2.8
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Certification
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15
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2.9
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Interim
Debentures or Certificates
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15
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2.10
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Mutilation,
Loss, Theft or Destruction
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16
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2.11
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Concerning
Interest
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16
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2.12
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Debentures
to Rank Pari
Passu
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16
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2.13
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Payments
of Amounts Due on Maturity
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16
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2.14
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U.S.
Legend on the Debentures
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17
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2.15
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Payment
of Interest
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18
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2.16
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Limitation
on Non-Resident Ownership
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18
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ARTICLE 3
REGISTRATION, TRANSFER, EXCHANGE AND OWNERSHIP
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19
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3.1
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Fully
Registered Debentures
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19
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3.2
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Global
Debentures
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19
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3.3
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Transferee
Entitled to Registration
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21
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3.4
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No
Notice of Trusts
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21
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3.5
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Registers
Open for Inspection
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21
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3.6
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Exchanges
of Debentures
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21
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3.7
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Closing
of Registers
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21
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3.8
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Charges
for Registration, Transfer and Exchange
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22
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3.9
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Ownership
of Debentures
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22
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ARTICLE 4
REDEMPTION AND PURCHASE OF DEBENTURES
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23
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4.1
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Applicability
of Article
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23
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4.2
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Partial
Redemption
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23
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4.3
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Notice
of Redemption
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23
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4.4
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Debentures
Due on Redemption Dates
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24
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4.5
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Deposit
of Redemption Monies or Trust Units
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24
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4.6
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Right
to Repay Redemption Price in Trust Units
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24
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4.7
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Failure
to Surrender Debentures Called for Redemption
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26
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4.8
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Cancellation
of Debentures Redeemed
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27
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4.9
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Purchase
of Debentures by the Trust
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27
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4.10
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Right
to Repay Principal Amount in Trust Units
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27
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ARTICLE 5
SUBORDINATION OF DEBENTURES
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30
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5.1
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Applicability
of Article
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30
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5.2
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Order
of Payment
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30
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5.3
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Subrogation
to Rights of Holders of Senior Indebtedness
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31
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5.4
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Obligation
to Pay Not Impaired
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31
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5.5
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No
Payment if Senior Indebtedness in Default
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31
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5.6
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Payment
on Debentures Permitted
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32
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5.7
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Confirmation
of Subordination
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32
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5.8
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Knowledge
of Debenture Trustee
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32
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5.9
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Debenture
Trustee May Hold Senior Indebtedness
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32
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5.10
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Rights
of Holders of Senior Indebtedness Not Impaired
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32
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5.11
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Altering
the Senior Indebtedness
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33
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5.12
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Additional
Indebtedness
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33
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5.13
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Right
of Debentureholder to Convert Not Impaired
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33
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5.14
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Invalidated
Payments
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33
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5.15
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Contesting
Security
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33
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ARTICLE 6
CONVERSION OF DEBENTURES
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33
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6.1
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Applicability
of Article
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33
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6.2
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Notice
of Expiry of Conversion Privilege
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33
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6.3
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Revival
of Right to Convert
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34
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6.4
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Manner
of Exercise of Right to Convert
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34
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6.5
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Adjustment
of Conversion Price
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35
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6.6
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No
Requirement to Issue Fractional Trust Units
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37
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6.7
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Trust
to Reserve Trust Units
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37
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6.8
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Cancellation
of Converted Debentures
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38
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6.9
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Certificate
as to Adjustment
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38
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6.10
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Notice
of Special Matters
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38
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6.11
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Protection
of Debenture Trustee
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38
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6.12
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U.S.
Legend on Trust Units
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38
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ARTICLE 7
COVENANTS OF THE TRUST
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39
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7.1
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To
Pay Principal and Interest
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39
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7.2
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To
Pay Debenture Trustee's Remuneration
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39
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7.3
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To
Give Notice of Default
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39
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7.4
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Preservation
of Existence, etc.
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39
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7.5
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Keeping
of Books
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39
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7.6
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Annual
Certificate of Compliance
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40
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7.7
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No
Distributions on Trust Units if Event of Default
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40
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7.8
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Limitation
on Additional Debentures
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40
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7.9
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Performance
of Covenants by Debenture Trustee
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40
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40
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8.1
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Events
of Default
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40
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8.2
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Notice
of Events of Default
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41
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8.3
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Waiver
of Default
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42
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8.4
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Enforcement
by the Debenture Trustee
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42
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8.5
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No
Suits by Debentureholders
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43
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8.6
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Application
of Monies by Debenture Trustee
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43
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8.7
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Notice
of Payment by Debenture Trustee
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44
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8.8
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Debenture
Trustee May Demand Production of Debentures
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44
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8.9
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Remedies
Cumulative
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44
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8.10
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Judgment
Against the Trust
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44
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8.11
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Immunity
of Debenture Trustee and Others
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45
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ii
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ARTICLE 9
SATISFACTION AND DISCHARGE
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45
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9.1
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Cancellation
and Destruction
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45
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9.2
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Non-Presentation
of Debentures
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45
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9.3
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Repayment
of Unclaimed Monies or Trust Units
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45
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9.4
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Discharge
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46
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9.5
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Satisfaction
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46
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9.6
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Continuance
of Rights, Duties and Obligations
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47
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ARTICLE 10
TRUST UNIT INTEREST PAYMENT ELECTION
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47
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10.1
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Trust
Unit Interest Payment Election
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47
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ARTICLE 11
SUCCESSORS
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49
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11.1
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Restrictions
on Amalgamation, Merger and Sale of Certain Assets, etc.
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49
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11.2
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Vesting
of Powers in Successor
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50
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ARTICLE 12
COMPULSORY ACQUISITION
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50
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12.1
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Definitions
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50
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12.2
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Offer
for Debentures
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50
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12.3
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Offeror's
Notice to Dissenting Shareholders
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51
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12.4
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Delivery
of Debenture Certificates
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51
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12.5
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Payment
of Consideration to Debenture Trustee
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51
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12.6
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Consideration
to be held in Trust
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51
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12.7
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Completion
of Transfer of Debentures to Offeror
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51
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12.8
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Communication
of Offer to Trust
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52
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ARTICLE 13
MEETINGS OF DEBENTUREHOLDERS
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52
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13.1
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Right
to Convene Meeting
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52
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13.2
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Notice
of Meetings
|
52
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13.3
|
Chairman
|
53
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13.4
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Quorum
|
54
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13.5
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Power
to Adjourn
|
54
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13.6
|
Show
of Hands
|
54
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13.7
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Poll
|
54
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13.8
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Voting
|
54
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13.9
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Proxies
|
55
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13.10
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Persons
Entitled to Attend Meetings
|
55
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13.11
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Powers
Exercisable by Extraordinary Resolution
|
55
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13.12
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Meaning
of "Extraordinary Resolution"
|
57
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13.13
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Powers
Cumulative
|
57
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13.14
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Minutes
|
57
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13.15
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Instruments
in Writing
|
58
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13.16
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Binding
Effect of Resolutions
|
58
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13.17
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Evidence
of Rights of Debentureholders
|
58
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13.18
|
Concerning
Serial Meetings
|
58
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ARTICLE 14
NOTICES
|
58
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14.1
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Notice
to Trust
|
58
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14.2
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Notice
to Debentureholders
|
59
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14.3
|
Notice
to Debenture Trustee
|
59
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14.4
|
Mail
Service Interruption
|
59
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ARTICLE 15
CONCERNING THE DEBENTURE TRUSTEE
|
59
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15.1
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No
Conflict of Interest
|
59
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15.2
|
Replacement
of Debenture Trustee
|
60
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15.3
|
Duties
of Debenture Trustee
|
60
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15.4
|
Reliance
Upon Declarations, Opinions, etc.
|
60
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15.5
|
Evidence
and Authority to Debenture Trustee, Opinions, etc.
|
60
|
|
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15.6
|
Officer's
Certificates Evidence
|
61
|
|
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15.7
|
Experts,
Advisers and Agents
|
62
|
|
iii
|
15.8
|
Debenture
Trustee May Deal in Debentures
|
62
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|
|
15.9
|
Investment
of Monies Held by Debenture Trustee
|
62
|
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15.10
|
Debenture
Trustee Not Ordinarily Bound
|
62
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15.11
|
Debenture
Trustee Not Required to Give Security
|
63
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15.12
|
Debenture
Trustee Not Bound to Act on Trust's Request
|
63
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15.13
|
Conditions
Precedent to Debenture Trustee's Obligations to Act Hereunder
|
63
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|
|
15.14
|
Authority
to Carry on Business
|
63
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15.15
|
Compensation
and Indemnity
|
63
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|
15.16
|
Acceptance
of Trust
|
64
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ARTICLE 16
SUPPLEMENTAL INDENTURES
|
64
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|
16.1
|
Supplemental
Indentures
|
64
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ARTICLE 17
EXECUTION AND FORMAL DATE
|
65
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17.1
|
Execution
|
65
|
|
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17.2
|
Contracts
of the Trust
|
65
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17.3
|
Formal
Date
|
66
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iv
THIS
INDENTURE made as of the 17th day
of December,
2002.
AMONG:
ACCLAIM
ENERGY TRUST, an open
ended trust governed under the laws of the Province of Alberta and having its
head office in the City of Calgary, in the Province of Alberta (hereinafter
called the "Trust")
AND
ACCLAIM
ENERGY INC., a
corporation existing under the laws of the Province of Alberta and having its
head office in the City of Calgary, in the Province of Alberta (hereinafter
called "AEI" or the
"Corporation")
AND
COMPUTERSHARE
TRUST COMPANY OF
CANADA, a trust company incorporated under the federal laws of Canada
having an office in the City of Calgary, in the Province of Alberta (hereinafter
called the "Debenture
Trustee")
AND
WHEREAS AEI is duly authorized to sign instruments on behalf of the
Trust;
AND
WHEREAS the foregoing recitals are made as representations and statements of
fact by the Trust and not by the Debenture Trustee;
ARTICLE 1
INTERPRETATION
|
1.1
|
Definitions
|
In
this Indenture and in the Debentures, unless there is something in the subject
matter or context inconsistent therewith, the expressions following shall have
the following meanings, namely:
|
(a)
|
"this
Indenture", "this
Trust Indenture",
"hereto", "herein",
"hereby", "hereunder",
"hereof" and similar
expressions refer to this Indenture and not to any particular Article,
Section, subsection, clause, subdivision or other portion hereof
and
include any and every instrument supplemental or ancillary hereto;
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(b)
|
"Additional
Debentures"
means Debentures of any one or more series, other than the first
series of
Debentures being the Initial Debentures, issued under this Indenture;
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|
(c)
|
"Applicable
Securities
Legislation" means applicable securities laws in each of the
Provinces of Canada;
|
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(d)
|
"Arrangement"
means the
plan of arrangement under Section 192 of the CBCA involving the
Trust, AEI, Elk Point and Burmis Energy Inc. (formerly known as 1018743
Alberta Ltd.), as appended to, and in accordance with the terms and
conditions of, the Arrangement Agreement (without the waiver by Elk
Point
or the Trust of any material condition to its obligations thereunder);
|
|
(e)
|
"Arrangement
Agreement"
means the amended and restated arrangement agreement dated
December 16, 2002 among the Trust, AEI, Elk Point and Burmis Energy
Inc. (formerly known as 1018743 Alberta Ltd.);
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|
(f)
|
"Beneficial
Holder" means
any person who holds a beneficial interest in a Global Debenture
as shown
on the books of the Depository or a Depository Participant;
|
|
(g)
|
"Business
Day" means any
day other than a Saturday, Sunday or any other day that the Debenture
Trustee in Calgary, Alberta is not generally open for business;
|
|
(h)
|
"Change
of Control" means
the acquisition by any person, or group of persons acting jointly
or in
concert, of voting control or direction of an aggregate of 66 2/3% or
more of the outstanding Trust Units of the Trust, or securities
convertible into or carrying the right to acquire Trust Units of
the
Trust;
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|
(i)
|
"Conversion
Price" means
the dollar amount for which each Trust Unit may be issued from time
to
time upon the conversion of Debentures or any series of Debentures
which
are by their terms convertible in accordance with the provisions
of
Article 6;
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|
(j)
|
"Counsel"
means a
barrister or solicitor or firm of barristers or solicitors retained
or
employed by the Debenture Trustee or retained or employed by the
Trust and
acceptable to the Debenture Trustee;
|
|
(k)
|
"Current
Market Price"
means in respect of a Trust Unit the weighted average price per unit
for
Trust Units for 20 consecutive trading days ending on the fifth trading
day preceding the date of determination on the Toronto Stock Exchange
(or,
if the Trust Units are not listed thereon, on such stock exchange
on which
the Trust Units are listed as may be selected for such purpose by
the
trustee and approved by the Debenture Trustee, or if the Trust Units
are
not listed on any stock exchange, then on the over-the-counter market).
The weighted average price shall be determined by dividing the aggregate
sale price of all Trust Units sold on the said exchange or market,
as the
case may be, during the said 20 consecutive trading days by the total
number of Trust Units so sold;
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|
(l)
|
"Debentureholders"
or
"holders" means
the persons for the time being entered in the register for Debentures
as
registered holders of Debentures payable to a named payee or any
transferees of such persons by endorsement or delivery;
|
|
(m)
|
"Debentures"
means the
debentures, notes or other evidence of indebtedness of the Trust
issued
and certified hereunder, or deemed to be issued and certified hereunder,
including, without limitation, the Initial Debentures, and for the
time
being outstanding, whether in definitive or interim form;
|
|
(n)
|
"Depository"
means, with
respect to the Debentures of any series issuable or issued in the
form of
one or more Global Debentures, the person designated as depository
by the
Trust pursuant to Section 3.2 until a successor depository shall
have
become such pursuant to the applicable provisions of this Indenture,
and
thereafter "Depository" shall mean each person who is then a depository
hereunder, and if at any time there is more than one such person,
"Depository" as used with respect to the Debentures of any series
shall
mean each depository with respect to the Global Debentures of such
series;
|
|
(o)
|
"Depository
Participant"
means a broker, dealer, bank, other financial institution or other
person
for whom from time to time, a Depository effects book-entry for a
Global
Debenture deposited with the Depository;
|
2
|
(p)
|
"Event
of Default" has
the meaning ascribed thereto in Section 8.1;
|
|
(q)
|
"Extraordinary
Resolution" has the meaning ascribed thereto in Section 13.12;
|
|
(r)
|
"Freely
Tradeable" means,
in respect of trust units of capital of any class of any trust or
shares
of capital of any class of any corporation, trust units or shares,
as the
case may be, which: (i) are issuable without the necessity of filing
a
prospectus or any other similar offering document (other than such
prospectus or similar offering document that has already been filed)
under
Applicable Securities Legislation and such issue does not constitute
a
distribution (other than a distribution already qualified by prospectus
or
similar offering document) under Applicable Securities Legislation;
and
(ii) can be traded by the holder thereof without any restriction
under
Applicable Securities Legislation, such as hold periods, except in
the
case of a distribution by a control person;
|
|
(s)
|
"Fully
Registered
Debentures" means Debentures registered as to both principal and
interest;
|
|
(t)
|
"generally
accepted accounting
principles" means generally accepted accounting principles from
time to time approved by the Canadian Institute of Chartered Accountants;
|
|
(u)
|
"Global
Debenture" means
a Debenture that is issued to and registered in the name of the
Depository, or its nominee, pursuant to Section 2.6 for purposes
of being
held by or on behalf of the Depository as custodian for participants
in
the Depository's book-entry only registration system;
|
|
(v)
|
"Government
Obligations"
means securities issued or guaranteed by the Government of Canada
or any
province thereof;
|
|
(w)
|
"Initial
Debentures"
means the Debentures designated as "11% Convertible Extendible Unsecured
Subordinated Debentures" and described in Section 2.4;
|
|
(x)
|
"Interest
Obligation"
means the obligation of the Trust to pay interest on the Debentures,
as
and when the same becomes due;
|
|
(y)
|
"Interest
Payment Date"
means a date specified in a Debenture as the date on which an instalment
of interest on such Debenture shall become due and payable;
|
|
(z)
|
"Legended
Debentures"
means Debentures bearing the legend provided for in Section 2.14;
|
|
(aa)
|
"Maturity
Account" means
an account or accounts required to be established by the Trust (and
which
shall be maintained by and subject to the control of the Debenture
Trustee) for each series of Debentures pursuant to and in accordance
with
this Indenture;
|
|
(bb)
|
"Maturity
Date" has the
meaning ascribed thereto in Section 4.10(a).
|
|
(cc)
|
"Maturity
Notice" has the
meaning attributed thereto in Section 2.4(f);
|
|
(dd)
|
"Offering"
means the
public offering by short form prospectus dated December 9, 2002 of
$45,000,000 in aggregate principal amount of Initial Debentures;
|
|
(ee)
|
"Officer's
Certificate"
means a certificate of the Trust signed by any one authorized officer
or
director of AEI, on behalf of the Trust, in his or her capacity as
an
officer or director of AEI, as the case may be, and not in his or
her
personal capacity;
|
|
(ff)
|
"Periodic
Offering" means
an offering of Debentures of a series from time to time, the specific
terms of which Debentures, including, without limitation, the rate
or
rates of interest, if any, thereon, the stated maturity or maturities
thereof and the redemption provisions, if any, with respect thereto,
are
to be determined by the Trust upon the issuance of such Debentures
from
time to time;
|
3
|
(gg)
|
"person"
includes an
individual, corporation, company, partnership, joint venture, association,
trust, trustee, unincorporated organization or government or any
agency or
political subdivision thereof;
|
|
(hh)
|
"Redemption
Date" has the
meaning attributed thereto in Section 4.3;
|
|
(ii)
|
"Redemption
Notice" has
the meaning attributed thereto in Section 4.3;
|
|
(jj)
|
"Redemption
Price" means,
in respect of a Debenture, the amount, excluding interest, payable
on the
Redemption Date fixed for such Debenture, which amount may be payable
by
the issuance of Freely Tradeable Trust Units as provided for in Section
4.6;
|
|
(kk)
|
"Regulation
S" means
Regulation S adopted by the United States Securities and Exchange
Commission under the 1933 Act;
|
|
(ll)
|
"Senior
Creditor" means
a holder or holders of Senior Indebtedness and includes any representative
or representatives or trustee or trustees of any such holder or holders;
|
|
(mm)
|
"Senior
Indebtedness"
shall mean the principal of and the interest and premium (or any
other
amounts payable thereunder), if any, on:
|
|
|
(i)
|
all
indebtedness (including any indebtedness to trade creditors), liabilities
and obligations of the Trust (other than the Debentures), whether
outstanding on the date of this Indenture or thereafter created,
incurred,
assumed or guaranteed in connection with the acquisition or operation
by
the Trust of any businesses, properties or other assets or for moneys
borrowed or raised by whatever means (including, without limitation,
by
means of commercial paper, bankers' acceptances, letters of credit,
debt
instruments, bank debt and financial leases, and any liability evidenced
by bonds, debentures, notes or similar instruments) or for any payment
obligation under any hedging, swap or other derivative agreement
or in
connection with the acquisition or operation of any businesses, properties
or other assets or for moneys borrowed or raised by whatever means
(including, without limitation, by means of commercial paper, bankers'
acceptances, letters of credit, debt instruments, bank debt and financial
leases, and any liability evidenced by bonds, debentures, notes or
similar
instruments) by others including, without limitation, any Subsidiary
of
the Trust for payment of which the Trust is responsible or liable,
whether
absolutely or contingently;
|
|
|
(ii)
|
any
and all credit facilities currently existing or hereafter entered
into
between the Trust or any Subsidiary of the Trust and any financial
institution or other lender including, without limitation, (A) the
agreement dated October 1, 2002 between AEI, The Toronto-Dominion
Bank as agent and a syndicate of financial institutions as lenders
and (B)
the credit facility to be entered into by AEI and a syndicate of
financial
institutions as lenders pursuant to a commitment letter dated
November 27, 2002 between AEI and The Toronto-Dominion Bank; and
|
|
|
(iii)
|
renewals,
extensions, restructurings, refinancings and refundings of any such
indebtedness, liabilities or obligations;
|
unless
in each case it is provided by the terms of the instrument creating or
evidencing such indebtedness, liabilities or obligations that such indebtedness,
liabilities or obligations are not superior in right of payment to Debentures
which by their terms are subordinated, which for greater certainty includes
the
Initial Debentures;
|
(nn)
|
"Senior
Security" means
all mortgages, liens, pledges, charges (whether fixed or floating),
security interests or other encumbrances of any kind, contingent
or
absolute, held by or on behalf of any Senior Creditor and in any
manner
securing any Senior Indebtedness;
|
|
(oo)
|
"Subsidiary"
has the
meaning ascribed thereto in the Securities Act
(Alberta);
|
4
|
(pp)
|
"Termination
Time" means
the earlier to occur of (i) 5:00 p.m. (Calgary time)
March 31, 2003 if the Arrangement has not become effective by that
time, and (ii) the date, if any, upon which the Arrangement Agreement
is terminated;
|
|
(qq)
|
"Time
of Expiry" means
the time of expiry of certain rights with respect to the conversion
of
Debentures under Article 6 which is to be set forth for each series
of
Debentures which by their terms are to be convertible;
|
|
(rr)
|
"Total
Market
Capitalization" means the total principal amount of all issued and
outstanding debentures of the Trust which are convertible at the
option of
the holder into Trust Units on the relevant date plus the amount
obtained
by multiplying the number of issued and outstanding Trust Units by
the
Current Market Price of such Trust Units on the relevant date;
|
|
(ss)
|
"trading
day" means, with
respect to the Toronto Stock Exchange or other market for securities,
any
day on which such exchange or market is open for trading or quotation;
|
|
(tt)
|
"Trust"
means Acclaim
Energy Trust and includes any successor to or of the Trust which
shall
have complied with the provisions of Article 11;
|
|
(uu)
|
"Trust
Units" means trust
units in the Trust, as such trust units are constituted on the date
of
execution and delivery of this Indenture; provided that in the event
of a
change or a subdivision, redivision, reduction, combination or
consolidation thereof, any reclassification, capital reorganization,
consolidation, amalgamation, arrangement, merger, sale or conveyance
or
liquidation, dissolution or winding-up, or such successive changes,
subdivisions, redivisions, reductions, combinations or consolidations,
reclassifications, capital reorganizations, consolidations, amalgamations,
arrangements, mergers, sales or conveyances or liquidations, dissolutions
or windings-up, then, subject to adjustments, if any, having been
made in
accordance with the provisions of Section 6.5, "Trust
Units"
shall mean the units or other securities or property resulting from
such
change, subdivision, redivision, reduction, combination or consolidation,
reclassification, capital reorganization, consolidation, amalgamation,
arrangement, merger, sale or conveyance or liquidation, dissolution
or
winding-up;
|
|
(vv)
|
"Trust
Unit Bid Request"
means a request for bids to purchase Trust Units (to be issued by
the
Trust on the Trust Unit Delivery Date) made by the Debenture Trustee
in
accordance with the Trust Unit Interest Payment Election Notice and
which
shall make the acceptance of any bid conditional upon the acceptance
of
sufficient bids to result in aggregate proceeds from such issue and
sale
of Trust Units which, together with the cash payments by the Trust
in lieu
of fractional Trust Units, if any, equal the Interest Obligation;
|
|
(ww)
|
"Trust
Unit Delivery
Date" means a date, not more than 90 days and not less than one
Business Day prior to the applicable Interest Payment Date, upon
which
Trust Units are issued by the Trust and delivered to the Debenture
Trustee
for sale pursuant to Trust Unit Purchase Agreements;
|
|
(xx)
|
"Trust
Unit Interest Payment
Election" means an election to satisfy an Interest Obligation on
the applicable Interest Payment Date in the manner described in the
Trust
Unit Interest Payment Election Notice;
|
|
(yy)
|
"Trust
Unit Interest Payment
Election Amount" means the sum of the amount of the aggregate
proceeds resulting from the sale of Trust Units on the Trust Unit
Delivery
Date pursuant to acceptable bids obtained pursuant to the Trust Unit
Bid
Requests, together with any amount paid by the Trust in respect of
fractional Trust Units pursuant to Section 10.1(g), that is equal
to the
aggregate amount of the Interest Obligation in respect of which the
Trust
Unit Interest Payment Election Notice was delivered;
|
|
(zz)
|
"Trust
Unit Interest Payment
Election Notice" means a written notice made by the Trust to the
Debenture Trustee specifying:
|
|
|
(i)
|
the
Interest Obligation to which the election relates;
|
5
|
|
(ii)
|
the
Trust Unit Interest Payment Election Amount;
|
|
|
(iii)
|
the
investment banks, brokers or dealers through which the Debenture
Trustee
shall seek bids to purchase the Trust Units and the conditions of
such
bids, which may include the minimum number of Trust Units, minimum
price
per Trust Unit, timing for closing for bids and such other matters
as the
Trust may specify; and
|
|
|
(iv)
|
that
the Debenture Trustee shall accept through the investment banks,
brokers
or dealers selected by the Trust only those bids which comply with
such
notice;
|
|
(aaa)
|
"Trust
Unit Proceeds
Investment" has the meaning attributed thereto in Section 10.1(h);
|
|
(bbb)
|
"Trust
Unit Purchase
Agreement" means an agreement in customary form among the Trust,
the Debenture Trustee and the persons making acceptable bids pursuant
to a
Trust Unit Bid Request, which complies with all applicable laws,
including
the Applicable Securities Legislation and the rules and regulations
of any
stock exchange on which the Debentures or Trust Units are then listed;
|
|
(ccc)
|
"trustee"
means the
trustee of the Trust for the time being and reference to action "by
the
trustee" means action by the trustee of the Trust;
|
|
(ddd)
|
"Trust's
Auditors" or
"Auditors of the
Trust" means an independent firm of chartered accountants duly
appointed as auditors of the Trust;
|
|
(eee)
|
"Unit
Redemption Right"
has the meaning attributed thereto in Section 4.6(a);
|
|
(fff)
|
"Unit
Repayment Right"
has the meaning attributed thereto in Section 4.10(a);
|
|
(ggg)
|
"United
States" means the
United States of America, its territories and possessions, any state
of
the United States and the District of Columbia;
|
|
(hhh)
|
"Written
Direction of the
Trust" means an instrument in writing signed by any one officer
or
trustee of the Trust; and
|
|
(iii)
|
"1933
Act" means the
United States Securities Act of 1933, as amended.
|
|
1.2
|
Meaning
of "Outstanding"
|
Every
Debenture certified and delivered by the Debenture Trustee hereunder shall
be
deemed to be outstanding until it is cancelled, converted or redeemed or
delivered to the Debenture Trustee for cancellation, conversion or redemption
for monies and/or Trust Units, as the case may be, or the payment thereof shall
have been set aside under Section 9.2, provided that:
|
(a)
|
Debentures
which have been partially redeemed, purchased or converted shall
be deemed
to be outstanding only to the extent of the unredeemed, unpurchased
or
unconverted part of the principal amount thereof;
|
|
(b)
|
when
a new Debenture has been issued in substitution for a Debenture which
has
been lost, stolen or destroyed, only one of such Debentures shall
be
counted for the purpose of determining the aggregate principal amount
of
Debentures outstanding; and
|
|
(c)
|
for
the purposes of any provision of this Indenture entitling holders
of
outstanding Debentures to vote, sign consents, requisitions or other
instruments or take any other action under this Indenture, or to
constitute a quorum of any meeting of Debentureholders, Debentures
owned
directly or indirectly, legally or equitably, by the Trust shall
be
disregarded except that:
|
6
|
|
(i)
|
for
the purpose of determining whether the Debenture Trustee shall be
protected in relying on any such vote, consent, acquisition or other
instrument or action, or on the holders of Debentures present or
represented at any meeting of Debentureholders, only the Debentures
which
the Debenture Trustee knows are so owned shall be so disregarded;
and
|
|
|
(ii)
|
Debentures
so owned which have been pledged in good faith other than to the
Trust
shall not be so disregarded if the pledgee shall establish to the
satisfaction of the Debenture Trustee the pledgee's right to vote
such
Debentures, sign consents, requisitions or other instruments or take
such
other actions in his discretion free from the control of the Trust
or a
Subsidiary of the Trust.
|
|
1.3
|
Interpretation
|
In
this Indenture:
|
(a)
|
words
importing the singular number or masculine gender shall include the
plural
number or the feminine or neuter genders, and vice versa;
|
|
(b)
|
all
references to Articles and Schedules refer, unless otherwise specified,
to
articles of and schedules to this Indenture;
|
|
(c)
|
all
references to Sections refer, unless otherwise specified, to sections,
subsections or clauses of this Indenture; and
|
|
(d)
|
words
and terms denoting inclusiveness (such as "include" or "includes"
or
"including"), whether or not so stated, are not limited by and do
not
imply limitation of their context or the words or phrases which precede
or
succeed them.
|
|
1.4
|
Headings
Etc.
|
The
division of this Indenture into Articles and Sections, the provision of a Table
of Contents and the insertion of headings are for convenience of reference
only
and shall not affect the construction or interpretation of this Indenture or
of
the Debentures.
|
1.5
|
Day
not a Business Day
|
In
the event that any day on or before which any action required to be taken
hereunder is not a Business Day, then such action shall be required to be taken
on or before the requisite time on the next succeeding day that is a Business
Day.
|
1.6
|
Applicable
Law
|
This
Indenture and the Debentures shall be construed in accordance with the laws
of
the Province of Alberta and the laws of Canada applicable therein and shall
be
treated in all respects as Alberta contracts.
|
1.7
|
Monetary
References
|
Whenever
any amounts of money are referred to herein, such amounts shall be deemed to
be
in lawful money of Canada unless otherwise expressed.
|
1.8
|
Invalidity,
Etc.
|
Any
provision hereof which is prohibited or unenforceable shall be ineffective
only
to the extent of such prohibition or unenforceability, without invalidating
the
remaining provisions hereof.
7
|
1.9
|
Language
|
Each
of the parties hereto hereby acknowledges that it has consented to and requested
that this Indenture and all documents relating thereto, including, without
limiting the generality of the foregoing, the form of Debenture attached hereto
as Schedule A, be drawn
up in the English language only.
|
1.10
|
Successors
and Assigns
|
All
covenants and agreements in this Indenture by the Trust shall bind its
successors and assigns, whether expressed or not.
|
1.11
|
Benefits
of Indenture
|
Nothing
in this Indenture or in the Debentures, express or implied, shall give to any
person, other than the parties hereto and their successors hereunder, any paying
agent, the holders of Debentures, the trustee and (to the extent provided in
Sections 8.11 and 17.2) the holders of Trust Units, any benefit or any legal
or
equitable right, remedy or claim under this Indenture.
|
1.12
|
References
to Acts of the Trust
|
For
greater certainty, where any reference is made in this Indenture, or in any
other instrument executed pursuant hereto or contemplated hereby to which the
Trust is party, to an act to be performed by, an obligation or liability of,
an
asset or right of, or a covenant by, the Trust, such reference shall be
construed and applied for all purposes as if it referred to an act to be
performed by, an obligation or liability of, or a covenant by, the
trustee.
ARTICLE 2
THE
DEBENTURES
|
2.1
|
Limit
of Debentures
|
The
aggregate principal amount of Debentures authorized to be issued under this
Indenture is unlimited, but Debentures may be issued only upon and subject
to
the conditions and limitations herein set forth.
|
2.2
|
Terms
of Debentures of any Series
|
The
Debentures may be issued in one or more series. There shall be established
herein or in or pursuant to one or more indentures supplemental hereto, prior
to
the initial issuance of Debentures of any particular series:
|
(a)
|
the
designation of the Debentures of the series (which need not include
the
term "Debentures"), which shall distinguish the Debentures of the
series
from the Debentures of all other series;
|
|
(b)
|
any
limit upon the aggregate principal amount of the Debentures of the
series
that may be certified and delivered under this Indenture (except
for
Debentures certified and delivered upon registration of, transfer
of,
amendment of, or in exchange for, or in lieu of, other Debentures
of the
series pursuant to Sections 2.9, 2.10, 3.2, 3.3 and 3.6);
|
|
(c)
|
the
date or dates on which the principal of the Debentures of the series
is
payable;
|
|
(d)
|
the
rate or rates at which the Debentures of the series shall bear interest,
if any, the date or dates from which such interest shall accrue,
on which
such interest shall be payable and on which a record, if any, shall
be
taken for the determination of holders to whom such interest shall
be
payable and/or the method or methods by which such rate or rates
or date
or dates shall be determined;
|
8
|
(e)
|
the
place or places where the principal of and any interest on Debentures
of
the series shall be payable or where any Debentures of the series
may be
surrendered for registration of transfer or exchange;
|
|
(f)
|
the
right, if any, of the Trust to redeem Debentures of the series, in
whole
or in part, at its option and the period or periods within which,
the
price or prices at which and any terms and conditions upon which,
Debentures of the series may be so redeemed, pursuant to any sinking
fund
or otherwise;
|
|
(g)
|
the
obligation, if any, of the Trust to redeem, purchase or repay Debentures
of the series pursuant to any mandatory redemption, sinking fund
or
analogous provisions or at the option of a holder thereof and the
price or
prices at which, the period or periods within which, the date or
dates on
which, and any terms and conditions upon which, Debentures of the
series
shall be redeemed, purchased or repaid, in whole or in part, pursuant
to
such obligations;
|
|
(h)
|
if
other than denominations of $1,000 and any integral multiple thereof,
the
denominations in which Debentures of the series shall be issuable;
|
|
(i)
|
subject
to the provisions of this Indenture, any trustee, Depositories,
authenticating or paying agents, transfer agents or registrars or
any
other agents with respect to the Debentures of the series;
|
|
(j)
|
any
other events of default or covenants with respect to the Debentures
of the
series;
|
|
(k)
|
whether
and under what circumstances the Debentures of the series will be
convertible into or exchangeable for securities of any person;
|
|
(l)
|
the
form and terms of the Debentures of the series;
|
|
(m)
|
if
applicable, that the Debentures of the series shall be issuable in
whole
or in part as one or more Global Debentures and, in such case, the
Depository or Depositories for such Global Debentures in whose name
the
Global Debentures will be registered, and any circumstances other
than or
in addition to those set forth in Section 2.9 or 3.2 or those applicable
with respect to any specific series of Debentures, as the case may
be, in
which any such Global Debenture may be exchanged for Fully Registered
Debentures, or transferred to and registered in the name of a person
other
than the Depository for such Global Debentures or a nominee thereof;
|
|
(n)
|
if
other than Canadian currency, the currency in which the Debentures
of the
series are issuable; and
|
|
(o)
|
any
other terms of the Debentures of the series (which terms shall not
be
inconsistent with the provisions of this Indenture).
|
All
Debentures of any one series shall be substantially identical, except as may
otherwise be established herein or by or pursuant to a resolution of the
directors of AEI, on behalf of the Trust, as evidenced by an Officer's
Certificate or in an indenture supplemental hereto. All Debentures of any one
series need not be issued at the same time and may be issued from time to time,
including pursuant to a Periodic Offering, consistent with the terms of this
Indenture, if so provided herein, by or pursuant to such resolution of the
directors of AEI, on behalf of the Trust, as evidenced by an Officer's
Certificate or in an indenture supplemental hereto.
|
2.3
|
Form
of Debentures
|
Except
in respect of the Initial Debentures, the form of which is provided for herein,
the Debentures of each series shall be substantially in such form or forms
(not
inconsistent with this Indenture) as shall be established herein or by or
pursuant to one or more resolutions of the directors of AEI, on behalf of the
Trust (as set forth in a resolution of the directors of AEI, on behalf of the
Trust or to the extent established pursuant to, rather than set forth in, a
resolution of the directors of AEI, on behalf of the Trust, in an Officer's
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted
9
or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto or with any
rules
or regulations of any securities exchange or securities regulatory authority
or
to conform to general usage, all as may be determined by the trustee executing
such Debentures, as conclusively evidenced by their execution of such
Debentures.
|
2.4
|
Form
and Terms of Initial Debentures
|
|
(a)
|
The
first series of Debentures (the "Initial Debentures")
authorized for issue immediately is limited to an aggregate principal
amount of $45,000,000 and shall be designated as "11% Convertible
Extendible Unsecured Subordinated Debentures".
|
|
(b)
|
The
Initial Debentures shall be dated December 17, 2002, and shall bear
interest from such date at the rate of 11% per annum, payable in
equal
semi-annual payments on June 30 and December 31 in each year, the
first such payment to fall due, subject as hereinafter provided,
on
June 30,
2003 and the last such payment (representing interest payable
from
the last Interest Payment Date to, but excluding, the Maturity Date
of the
Initial Debentures), subject as hereinafter provided, to fall due
on
December 31, 2007, payable after as well as before maturity and after
as well as before default, with interest on amounts in default at
the same
rate, compounded semi-annually. For certainty, subject to
adjustment as hereinafter provided, the first interest payment will
include interest accrued from December 17, 2002 to, but excluding,
June 30,
2003, which will be equal to $59.52 for each $1,000 principal
amount of the Initial Debentures. The Initial Debentures will
mature on December 31, 2007, provided that if the Arrangement does
not become effective prior to 5:00 p.m. (Calgary time) on
March 31, 2003, substantially and in all material respects as
contemplated in the Arrangement Agreement, and as the terms of such
agreement are described in the prospectus of the Trust dated
December 9, 2002, or if the Arrangement Agreement is terminated at
any earlier time, the Initial Debentures will mature on March 31,
2003. If the Arrangement becomes effective prior to 5:00 p.m.
(Calgary time) on March 31, 2003, substantially and in all material
respects as contemplated in the Arrangement Agreement, and as the
terms of
such agreement are described in the prospectus of the Trust dated
December 9, 2002, the Maturity Date of the Initial Debentures will be
automatically extended from March 31, 2003 to December 31, 2007
without any further act or formality on the part of the Trust or
the
Debenture Trustee. The Trust will announce by press release the
completion of the Arrangement or the Termination Time, as the case
may be,
and confirmation of the Maturity Date and will provide a copy thereof
to
the Debenture Trustee in accordance with Section 14.3.
|
|
(c)
|
The
Initial Debentures will be redeemable in accordance with the terms
of
Article 4, provided that the Initial Debentures will not be redeemable
on
or before January 1, 2006, except
in the
event of the satisfaction of certain conditions after a Change of
Control
has occurred as outlined herein. Subsequent to January 1, 2006 and on
or prior to January 1, 2007, the
Initial
Debentures may be redeemed at the option of the Trust in whole or
in part
from time to time on notice as provided for in Section 4.3 at a price
equal to $1,050 per $1,000 principal amount of Debenture plus accrued
and
unpaid interest. After January 1, 2007, the Initial
Debentures will be redeemable prior to maturity in whole or in part
from
time to time at the option of the Trust on notice as provided for
in
Section 4.3 hereof at a price equal to $1,025 per $1,000 principal
amount of Debenture plus accrued and unpaid interest. The Redemption
Notice for the Initial Debentures shall be substantially in the form
of
Schedule B. In
connection with the redemption of the Initial Debentures, the Trust
may,
at its option and subject to the provisions of Section 4.6 and subject
to
regulatory approval, elect to satisfy its obligation to pay all or
a
portion of the aggregate principal amount of the Initial Debentures
to be
redeemed by issuing and delivering to the holders of such Initial
Debentures, Freely Tradeable Trust Units. If the Trust elects
to exercise such option, it shall so specify and provide details
in the
Redemption Notice. Interest accrued and unpaid on the
Debentures on the Redemption Date will be paid to holders of Debentures,
in cash, in the manner contemplated in Section 4.5.
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(d)
|
The
Initial Debentures will be subordinated to the Senior Indebtedness
of the
Trust in accordance with the provisions of Article 5.
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(e)
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Upon
and subject to the provisions and conditions of Article 6, the holder
of
each Initial Debenture shall have the right at such holder's option,
at
any time prior to the close of business on the earlier of
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10
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December 31,
2007 and the last Business Day immediately preceding the date specified
by
the Trust for redemption of the Initial Debentures by notice to the
holders of Initial Debentures in accordance with Sections 2.4(c)
and 4.3
(the earlier of which will be the "Time of Expiry" for the
purposes of Article 6 in respect of the Initial Debentures), to convert
the whole or, in the case of an Initial Debenture of a denomination
in
excess of $1,000, any part which is $1,000 or an integral multiple
thereof, of the principal amount of a Debenture into Trust Units
at the
Conversion Price in effect on the Date of Conversion (as defined
in
Section 6.4(b)).
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The
Conversion Price in effect on the date hereof for each Trust Unit to be issued
upon the conversion of Initial Debentures shall be equal to $3.90 such that
approximately 256.410 Trust Units shall be issued for each $1,000 principal
amount of Initial Debentures so converted. No adjustment in the number of Trust
Units to be issued upon conversion will be made for distributions or dividends
on Trust Units issuable upon conversion or for interest accrued on Initial
Debentures surrendered for conversion. The Conversion Price
applicable to and the Trust Units, securities or other property receivable
on
the conversion of the Initial Debentures is subject to adjustment pursuant
to
the provisions of Section 6.5.
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(f)
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On
maturity of the Initial Debentures, the Trust may, at its option
and upon
and subject to the terms of Section 4.10 and subject to regulatory
approval, elect to satisfy its obligation to pay all or a portion
of the
aggregate principal amount of the Initial Debentures due on maturity
by
issuing and delivering to such holders of Initial Debentures Freely
Tradeable Trust Units. If the Trust elects to exercise such
option, it shall deliver a maturity notice (the "Maturity Notice") to the
holders of the Initial Debentures in the form of Schedule C and provide
the necessary details. Interest accrued and unpaid on the
Debentures on the maturity date will be paid to holders of Debentures
in
cash.
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(g)
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The
Initial Debentures shall be issued in denominations of $1,000 and
integral
multiples of $1,000. Each Initial Debenture and the certificate of
the
Debenture Trustee endorsed thereon shall be issued in substantially
the
form set out in Schedule
A, with such insertions, omissions, substitutions or other
variations as shall be required or permitted by this Indenture, and
may
have imprinted or otherwise reproduced thereon such legend or legends
or
endorsements, not inconsistent with the provisions of this Indenture,
as
may be required to comply with any law or with any rules or regulations
pursuant thereto or with any rules or regulations of any securities
exchange or securities regulatory authority or to conform with general
usage, all as may be determined by the directors of AEI (on behalf
of the
Trust) executing such Initial Debenture in accordance with Section
2.7
hereof, as conclusively evidenced by their execution of an Initial
Debenture. Each Initial Debenture shall additionally bear such
distinguishing letters and numbers as the Debenture Trustee shall
approve.
Notwithstanding the foregoing, an Initial Debenture may be in such
other
form or forms as may, from time to time, be, approved by a resolution
of
the directors of AEI, on behalf of the Trust or as specified in an
Officer's Certificate. The Initial Debentures may be engraved,
lithographed, printed, mimeographed or typewritten or partly in one
form
and partly in another.
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The
Initial Debentures shall be issued as Global Debentures and the Global
Debentures will be registered in the name of the Depositary which, as of the
date hereof, shall be The Canadian Depositary for Securities Limited (or any
nominee of the Depositary). No beneficial holder will receive definitive
certificates representing their interest in Debentures except as provided in
Section 3.2. A Global Debenture may be exchanged for Debentures in registered
form that are not Global Debentures, or transferred to and registered in the
name of a person other than the Depository for such Global Debentures or a
nominee thereof as provided in Section 3.2.
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(h)
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Upon
and subject to the terms and conditions of Article 10, the Trust
may
elect, from time to time, to satisfy its Interest Obligation on the
Initial Debentures on any Interest Payment Date (or on redemption
or
maturity) by delivering Trust Units to the Debenture Trustee.
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(i)
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Within
30 days following the occurrence of a Change of Control, and subject
to
the provisions and conditions of this Section 2.4(i), the Trust shall
be
obligated to offer to purchase the Initial Debentures. The terms
and
conditions of such obligation are set forth below:
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11
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(i)
|
Within
30 days following the occurrence of a Change of Control, the Trust
shall
deliver to the Debenture Trustee, and the Debenture Trustee shall
promptly
deliver to the holders of the Initial Debentures, a notice stating
that
there has been a Change of Control and specifying the circumstances
surrounding such event (a "Change of Control
Notice") together with an offer in writing (the "Offer")
to purchase all
then outstanding Initial Debentures made in accordance with the
requirements of Applicable Securities Legislation at a price equal
to 101%
of the principal amount thereof (the "Offer Price") plus
accrued and unpaid interest on such Initial Debentures up to, but
excluding, the date of acquisition by the Trust or a related party
of such
Debentures (collectively, the "Total Offer Price").
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(ii)
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If
90% or more in aggregate principal amount of Initial Debentures
outstanding on the date the Trust provides the Change of Control
Notice
and the Offer to holders of the Initial Debentures have been tendered
for
purchase pursuant to the Offer on the expiration thereof, the Trust
has
the right and obligation upon written notice provided to the Debenture
Trustee within 10 days following the expiration of the Offer, to
redeem
and shall redeem all the Initial Debentures remaining outstanding
on the
expiration of the Offer at the Total Offer Price (the "90% Redemption
Right").
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(iii)
|
Upon
receipt of notice that the Trust has exercised or is exercising the
90%
Redemption Right and is acquiring the remaining Initial Debentures,
the
Debenture Trustee shall promptly provide written notice to each
Debentureholder that did not previously accept the Offer that:
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|
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(A)
|
the
Trust has exercised the 90% Redemption Right and is purchasing all
outstanding Initial Debentures effective on the expiry of the Offer
at the
Total Offer Price, and shall include a calculation of the amount
payable
to such holder as payment of the Total Offer Price;
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(B)
|
each
such holder must transfer their Initial Debentures to the Debenture
Trustee on the same terms as those holders that accepted the Offer
and
must send their respective Initial Debentures, duly endorsed for
transfer,
to the Debenture Trustee within 10 days after the sending of such
notice;
and
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(C)
|
the
rights of such holder under the terms of the Initial Debentures and
this
Indenture cease effective as of the date of expiry of the Offer provided
the Trust has, on or before the time of notifying the Debenture Trustee
of
the exercise of the 90% Redemption Right, paid the Total Offer Price
to,
or to the order of, the Debenture Trustee and thereafter the Initial
Debentures shall not be considered to be outstanding and the holder
shall
not have any right except to receive such holder's Total Offer Price
upon
surrender and delivery of such holder's Initial Debentures in accordance
with the Indenture.
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(iv)
|
The
Trust shall, on or before 11:00 a.m. (Calgary Time), on the Business
Day
immediately prior to the expiry of the Offer, deposit with the Debenture
Trustee or any paying agent to the order of the Debenture Trustee,
such
sums of money as may be sufficient to pay the Total Offer Price of
the
Initial Debentures to be purchased or redeemed by the Trust on the
expiry
of the Offer, provided the Trust may elect to satisfy this requirement
by
providing the Debenture Trustee with a cheque for such amounts required
under this Section 2.4(i)(iv) post-dated to the date of expiry of
the
Offer. The Trust shall also deposit with the Debenture Trustee a
sum of
money sufficient to pay any charges or expenses which may be incurred
by
the Debenture Trustee in connection with such purchase and/or redemption,
as the case may be. Every such deposit shall be irrevocable. From
the sums
so deposited, the Debenture Trustee shall pay or cause to be paid
to the
holders of such Initial Debentures, the Offer Price, and all accrued
and
unpaid interest, if any, to which they are entitled on the Trust's
purchase or redemption.
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(v)
|
In
the event that one or more of such Initial Debentures being purchased
in
accordance with this Section 2.4(i) becomes subject to purchase in
part
only, upon surrender of such Initial Debentures for payment of the
Total
Offer Price, the Trust shall execute and the Debenture Trustee shall
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12
|
|
certify
and deliver without charge to the holder thereof or upon the holder's
order, one or more new Initial Debentures for the portion of the
principal
amount of the Initial Debentures not purchased.
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(vi)
|
Initial
Debentures for which holders have accepted the Offer and Initial
Debentures which the Trust has elected to redeem in accordance with
this
Section 2.4(i) shall become due and payable at the Total Offer Price
on
the date of expiry of the Offer, in the same manner and with the
same
effect as if it were the date of maturity specified in such Initial
Debentures, anything therein or herein to the contrary notwithstanding,
and from and after such date of expiry of the Offer, if the money
necessary to purchase or redeem the Initial Debentures shall have
been
deposited as provided in this Section 2.4(i) and affidavits or other
proofs satisfactory to the Debenture Trustee as to the publication
and/or
mailing of such notices shall have been lodged with it, interest
on the
Initial Debentures shall cease. If any question shall arise as to
whether
any notice has been given as above provided and such deposit made,
such
question shall be decided by the Debenture Trustee whose decision
shall be
final and binding upon all parties in interest.
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(vii)
|
In
case the holder of any Initial Debenture to be purchased or redeemed
in
accordance with this Section 2.4(i) shall fail on or before the date
of
expiry of the Offer so to surrender such holder's Initial Debenture
or
shall not within such time accept payment of the moneys payable,
or give
such receipt therefor, if any, as the Debenture Trustee may require,
such
moneys may be set aside in trust, either in the deposit department
of the
Debenture Trustee or in a chartered bank, and such setting aside
shall for
all purposes be deemed a payment to the Debentureholder of the sum
so set
aside and the Debentureholder shall have no other right except to
receive
payment of the moneys so paid and deposited, upon surrender and delivery
up of such holder's Initial Debenture. In the event that any money
required to be deposited hereunder with the Debenture Trustee or
any
depository or paying agent on account of principal, premium, if any,
or
interest, if any, on Initial Debentures issued hereunder shall remain
so
deposited for a period of six years from the date of expiry of the
Offer,
then such moneys, together with any accumulated interest thereon,
shall at
the end of such period be paid over or delivered over by the Debenture
Trustee or such depository or paying agent to the Trust and the Debenture
Trustee shall not be responsible to Debentureholders for any amounts
owing
to them. Notwithstanding the foregoing, the Debenture Trustee will
pay any
remaining funds deposited hereunder prior to the expiry of six years
after
the date of expiry of the Offer to the Trust upon receipt from the
Trust,
or one of its Subsidiaries, of an unconditional letter of credit
from a
Canadian chartered bank in an amount equal to or in excess of the
amount
of the remaining funds. If the remaining funds are paid to the Trust
prior
to the expiry of six years after the date of expiry of the Offer,
the
Trust shall reimburse the Debenture Trustee for any amounts required
to be
paid by the Debenture Trustee to a holder of a Debenture pursuant
to the
Offer after the date of such payment of the remaining funds to the
Trust
but prior to six years after the date of expiry of the Offer.
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(viii)
|
Subject
to the provisions above related to Initial Debentures purchased in
part,
all Initial Debentures redeemed and paid under this Section 2.4(i)
shall
forthwith be delivered to the Debenture Trustee and cancelled and
no
Initial Debentures shall be issued in substitution therefor.
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(j)
|
The
Debenture Trustee shall be provided with the documents and instruments
referred to in Sections 2.5(b), (c) and (d) with respect to the Initial
Debentures prior to the issuance of the Initial Debentures.
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2.5
|
Certification
and Delivery of Additional Debentures
|
Subject
to Section 7.8, the Trust may from time to time request the Debenture Trustee
to
certify and deliver Additional Debentures of any series by delivering to the
Debenture Trustee the documents referred to below in this Section 2.5 whereupon the Debenture
Trustee shall certify such Debentures and cause the same to be delivered in
accordance with the Written Direction of the Trust referred to below or pursuant
to such procedures acceptable to the Debenture Trustee as may be specified
from
time to time by a Written Direction of the Trust. The maturity date, issue
date,
interest rate (if any) and any other terms of the Debentures of such series
shall be set forth in or determined by or pursuant to such Written Direction
of
the Trust and procedures. In certifying such
13
Debentures,
the Debenture Trustee shall be entitled to receive and shall be fully protected
in relying upon, unless and until such documents have been superseded or
revoked:
|
(a)
|
an
Officer's Certificate and/or executed supplemental indenture by or
pursuant to which the form and terms of such Additional Debentures
were
established;
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(b)
|
a
Written Direction of the Trust requesting certification and delivery
of
such Additional Debentures and setting forth delivery instructions,
provided that, with respect to Debentures of a series subject to
a
Periodic Offering:
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|
|
(i)
|
such
Written Direction of the Trust may be delivered by the Trust to the
Debenture Trustee prior to the delivery to the Debenture Trustee
of such
Additional Debentures of such series for certification and delivery;
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(ii)
|
the
Debenture Trustee shall certify and deliver Additional Debentures
of such
series for original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount, if any, established
for such series, pursuant to a Written Direction of the Trust or
pursuant
to procedures acceptable to the Debenture Trustee as may be specified
from
time to time by a Written Direction of the Trust;
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(iii)
|
the
maturity date or dates, issue date or dates, interest rate or rates
(if
any) and any other terms of Additional Debentures of such series
shall be
determined by an executed supplemental indenture or by Written Direction
of the Trust or pursuant to such procedures; and
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(iv)
|
if
provided for in such procedures, such Written Direction of the Trust
may
authorize certification and delivery pursuant to oral or electronic
instructions from the Trust which oral or electronic instructions
shall be
promptly confirmed in writing;
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|
(c)
|
an
opinion of Counsel, in form and substance satisfactory to the Debenture
Trustee, acting reasonably, to the effect that all requirements imposed
by
this Indenture or by law in connection with the proposed issue of
Additional Debentures have been complied with, subject to the delivery
of
certain documents or instruments specified in such opinion; and
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(d)
|
an
Officer's Certificate certifying that the Trust is not in default
under
this Indenture, that the terms and conditions for the certification
and
delivery of Additional Debentures (including those set forth in Section
15.5), have been complied with subject to the delivery of any documents
or
instruments specified in such Officer's Certificate and that no Event
of
Default exists or will exist upon such certification and delivery.
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2.6
|
Issue
of Global Debentures
|
|
(a)
|
The
Trust may specify that the Debentures of a series are to be issued
in
whole or in part as one or more Global Debentures registered in the
name
of a Depository, or its nominee, designated by the Trust in the Written
Direction of the Trust delivered to the Debenture Trustee at the
time of
issue of such Debentures, and in such event the Trust shall execute
and
the Debenture Trustee shall certify and deliver one or more Global
Debentures that shall:
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(i)
|
represent
an aggregate amount equal to the principal amount of the outstanding
Debentures of such series to be represented by one or more Global
Debentures;
|
|
|
(ii)
|
be
delivered by the Debenture Trustee to such Depository or pursuant
to such
Depository's instructions; and
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|
|
(iii)
|
bear
a legend substantially to the following effect:
|
14
"This
Debenture is a Global Debenture within the meaning of the Indenture herein
referred to and is registered in the name of a Depository or a nominee thereof.
This Debenture may not be transferred to or exchanged for Debentures registered
in the name of any person other than the Depository or a nominee thereof and
no
such transfer may be registered except in the limited circumstances described
in
the Indenture. Every Debenture authenticated and delivered upon registration
of,
transfer of, or in exchange for, or in lieu of, this Debenture shall be a Global
Debenture subject to the foregoing, except in such limited circumstances
described in the Indenture."
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(b)
|
Each
Depository designated for a Global Debenture must, at the time of
its
designation and at all times while it serves as such Depository,
be a
clearing agency registered or designated under the securities legislation
of the jurisdiction where the Depository has its principal offices.
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|
2.7
|
Execution
of Debentures
|
All
Debentures shall be signed (either manually or by facsimile signature) by any
one authorized director or officer of AEI, on behalf of the Trust, holding
office at the time of signing. A facsimile signature upon a Debenture shall
for
all purposes of this Indenture be deemed to be the signature of the person
whose
signature it purports to be. Notwithstanding that any person whose signature,
either manual or in facsimile, appears on a Debenture as a director or officer
may no longer hold such office at the date of the Debenture or at the date
of
the certification and delivery thereof, such Debenture shall be valid and
binding upon the Trust and entitled to the benefits of this Indenture.
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2.8
|
Certification
|
No
Debenture shall be issued or, if issued, shall be obligatory or shall entitle
the holder to the benefits of this Indenture, until it has been manually
certified by or on behalf of the Debenture Trustee substantially in the form
set
out in this Indenture, in the relevant supplemental indenture, or in some other
form approved by the Debenture Trustee. Such certification on any Debenture
shall be conclusive evidence that such Debenture is duly issued, is a valid
obligation of the Trust and the holder is entitled to the benefits
hereof.
The
certificate of the Debenture Trustee signed on the Debentures, or interim
Debentures hereinafter mentioned, shall not be construed as a representation
or
warranty by the Debenture Trustee as to the validity of this Indenture or of
the
Debentures or interim Debentures or as to the issuance of the Debentures or
interim Debentures and the Debenture Trustee shall in no respect be liable
or
answerable for the use made of the Debentures or interim Debentures or any
of
them or the proceeds thereof. The certificate of the Debenture
Trustee signed on the Debentures or interim Debentures shall, however, be a
representation and warranty by the Debenture Trustee that the Debentures or
interim Debentures have been duly certified by or on behalf of the Debenture
Trustee pursuant to the provisions of this Indenture.
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2.9
|
Interim
Debentures or Certificates
|
Pending
the delivery of definitive Debentures of any series to the Debenture Trustee,
the Trust may issue and the Debenture Trustee certify in lieu thereof interim
Debentures in such forms and in such denominations and signed in such manner
as
provided herein, entitling the holders thereof to definitive Debentures of
the
series when the same are ready for delivery; or the Trust may execute and the
Debenture Trustee certify a temporary Debenture for the whole principal amount
of Debentures of the series then authorized to be issued hereunder and deliver
the same to the Debenture Trustee and thereupon the Debenture Trustee may issue
its own interim certificates in such form and in such amounts, not exceeding
in
the aggregate the principal amount of the temporary Debenture so delivered
to
it, as AEI, on behalf of the Trust, and the Debenture Trustee may approve
entitling the holders thereof to definitive Debentures of the series when the
same are ready for delivery; and, when so issued and certified, such interim
or
temporary Debentures or interim certificates shall, for all purposes but without
duplication, rank in respect of this Indenture equally with Debentures duly
issued hereunder and, pending the exchange thereof for definitive Debentures,
the holders of the interim or temporary Debentures or interim certificates
shall
be deemed without duplication to be Debentureholders and entitled to the benefit
of this Indenture
15
to
the same extent and in the same manner as though the said exchange had actually
been made. Forthwith after the Trust shall have delivered the definitive
Debentures to the Debenture Trustee, the Debenture Trustee shall cancel such
temporary Debentures, if any, and shall call in for exchange all interim
Debentures or certificates that shall have been issued and forthwith after
such
exchange shall cancel the same. No charge shall be made by the Trust or the
Debenture Trustee to the holders of such interim or temporary Debentures or
interim certificates for the exchange thereof. All interest paid upon interim
or
temporary Debentures or interim certificates shall be noted thereon as a
condition precedent to such payment unless paid by cheque to the registered
holders thereof.
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2.10
|
Mutilation,
Loss, Theft or Destruction
|
In
case any of the Debentures issued hereunder shall become mutilated or be lost,
stolen or destroyed, the Trust, in its discretion, may issue, and thereupon
the
Debenture Trustee shall certify and deliver, a new Debenture upon surrender
and
cancellation of the mutilated Debenture, or in the case of a lost, stolen or
destroyed Debenture, in lieu of and in substitution for the same, and the
substituted Debenture shall be in a form approved by the Debenture Trustee
and
shall be entitled to the benefits of this Indenture and rank equally in
accordance with its terms with all other Debentures issued or to be issued
hereunder. In case of loss, theft or destruction the applicant for a substituted
Debenture shall furnish to the Trust and to the Debenture Trustee such evidence
of the loss, theft or destruction of the Debenture as shall be satisfactory
to
them in their discretion and shall also furnish an indemnity satisfactory to
them in their discretion. The applicant shall pay all reasonable expenses
incidental to the issuance of any substituted Debenture.
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2.11
|
Concerning
Interest
|
|
(a)
|
All
Debentures issued hereunder, whether originally or upon exchange
or in
substitution for previously issued Debentures which are interest
bearing,
shall bear interest (i) from and including their issue date, or
(ii) from and including the last Interest Payment Date to which
interest shall have been paid or made available for payment on the
outstanding Debentures of that series, whichever shall be the later,
or,
in respect of Debentures subject to a Periodic Offering, from and
including their issue date or from and including the last Interest
Payment
Date to which interest shall have been paid or made available for
payment
on such Debentures, in all cases, to but excluding the next Interest
Payment Date;
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|
(b)
|
Unless
otherwise specifically provided in the terms of the Debentures of
any
series, interest for any period of less than six months shall be
computed
on the basis of a year of 365 days. Subject to Section 2.4(b) in
respect
of the method for calculating the amount of interest to be paid on
the
Initial Debentures on the first Interest Payment Date in respect
thereof,
with respect to any series of Debentures, whenever interest is computed
on
a basis of a year (the "deemed year") which
contains fewer days than the actual number of days in the calendar
year of
calculation, such rate of interest shall be expressed as a yearly
rate for
purposes of the Interest
Act (Canada) by multiplying such rate of interest by the actual
number of days in the calendar year of calculation and dividing it
by the
number of days in the deemed year.
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|
2.12
|
Debentures
to Rank Pari
Passu
|
The
Debentures will be direct unsecured obligations of the Trust. Each Debenture
of
the same series of Debentures will rank pari passu with each other
Debenture of the same series (regardless of their actual date or terms of issue)
and, subject to statutory preferred exceptions, with all other present and
future subordinated and unsecured indebtedness of the Trust except for sinking
fund provisions (if any) applicable to different series of Debentures or other
similar types of obligations of the Trust.
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2.13
|
Payments
of Amounts Due on Maturity
|
Except
as may otherwise be provided in any supplemental indenture in respect of any
series of Debentures and subject to Section 4.10, payments of amounts due upon
maturity of the Debentures will be made in the following manner. The Trust
will
establish and maintain with the Debenture Trustee a Maturity Account for each
series of Debentures. Each such Maturity Account shall be maintained by and
be
subject to the control of the Debenture Trustee for the purposes of this
Indenture. On or before 11:00 a.m., Calgary Time on the Business Day
16
immediately
prior to each Maturity Date for Debentures outstanding from time to time under
this Indenture, the Trust will deliver to the Debenture Trustee a cheque for
deposit in the applicable Maturity Account in an amount sufficient to pay the
cash amount payable in respect of such Debentures (less any tax required by
law
to be deducted), provided the Trust may elect to satisfy this requirement by
providing the Debenture Trustee with a cheque for such amounts required under
this Section 2.13 post-dated to the applicable Maturity Date. The Debenture
Trustee, on behalf of the Trust, will pay to each holder entitled to receive
payment the principal amount of and premium (if any) on the Debenture, upon
surrender of the Debenture at any branch of the Debenture Trustee designated
for
such purpose from time to time by the Trust and the Debenture Trustee. The
delivery of such funds to the Debenture Trustee for deposit to the applicable
Maturity Account will satisfy and discharge the liability of the Trust for
the
Debentures to which the delivery of funds relates to the extent of the amount
delivered (plus the amount of any tax deducted as aforesaid) and such Debentures
will thereafter to that extent not be considered as outstanding under this
Indenture and such holder will have no other right in regard thereto other
than
to receive out of the money so delivered or made available the amount to which
it is entitled.
|
2.14
|
U.S.
Legend on the Debentures
|
|
(a)
|
The
Debentures and the Trust Units issuable upon conversion thereof have
not
been and will not be registered under the 0000 Xxx. All Debentures
and the
Trust Units issuable upon conversion thereof issued and sold in the
United
States in reliance on Rule 144A under the 1933 Act, as well as all
Debentures and the Trust Units issuable upon conversion thereof issued
in
exchange for or in substitution of the foregoing securities, shall
bear
the following legend (the "U.S. Legend"):
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"THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR
THE BENEFIT OF THE TRUST THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE TRUST, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE
WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (C) WITHIN THE UNITED
STATES IN ACCORDANCE WITH (1) RULE 144A UNDER THE SECURITIES ACT OR (2) RULE
144
UNDER THE SECURITIES ACT, IF AVAILABLE. DELIVERY OF THIS CERTIFICATE MAY NOT
CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES
IN
CANADA. PROVIDED THAT THE TRUST IS A "FOREIGN ISSUER" WITHIN THE MEANING OF
REGULATIONS S, A NEW CERTIFICATE, BEARING NO LEGEND, DELIVERY OF WHICH WILL
CONSTITUTE "GOOD DELIVERY" MAY BE OBTAINED FROM COMPUTERSHARE TRUST COMPANY
OF
CANADA UPON DELIVERY OF THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN
A
FORM SATISFACTORY TO COMPUTERSHARE TRUST COMPANY OF CANADA AND THE TRUST, TO
THE
EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY IS BEING MADE IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT."
provided,
that if the Debentures are being sold under clause (B) above, and provided
that
the Trust is a "foreign issuer" within the meaning of Regulation S under the
1933 Act at the time of sale, the U.S. Legend may be removed by providing a
declaration to the Debenture Trustee as set forth in Schedule E hereto (or as the
Trust may prescribe from time to time); and provided, further, that, if any
such
securities are being sold under clause (C)(2) above, the U.S. Legend may be
removed by delivery to the Debenture Trustee of an opinion of Counsel, of
recognized standing reasonably satisfactory to the Trust, that the U.S. Legend
is no longer required under applicable requirements of the 1933 Act or state
securities laws. Provided that the Debenture Trustee obtains confirmation from
the Trust that such counsel is satisfactory to it, the Debenture Trustee shall
be entitled to rely on such opinion of counsel without further inquiry.
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(b)
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Prior
to the issuance of the Debentures, the Trust shall notify the Debenture
Trustee, in writing, concerning which Debentures are to bear the
U.S.
Legend. The Debenture Trustee will thereafter maintain a list of
all
registered holders from time to time of Legended Debentures.
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17
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2.15
|
Payment
of Interest
|
The
following provisions shall apply to Debentures, except as otherwise provided
in
Section 2.4(b) or specified in a resolution of the directors of AEI, on
behalf of the Trust, an Officer's Certificate or a supplemental indenture
relating to a particular series of Additional Debentures:
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(a)
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As
interest becomes due on each Debenture (except on conversion or on
redemption, when interest may at the option of the Trust be paid
upon
surrender of such Debenture) the Trust, either directly or through
the
Debenture Trustee or any agent of the Debenture Trustee, shall send
or
forward by prepaid ordinary mail, electronic transfer of funds or
such
other means as may be agreed to by the Debenture Trustee, payment
of such
interest (less any tax required to be withheld therefrom) to the
order of
the registered holder of such Debenture appearing on the registers
maintained by the Debenture Trustee at the close of business on the
seventh Business Day prior to the applicable Interest Payment Date
and
addressed to the holder at the holder's last address appearing on
the
register, unless such holder otherwise directs. If payment is made
by
cheque, such cheque shall be forwarded at least three days prior
to each
date on which interest becomes due and if payment is made by other
means
(such as electronic transfer of funds, provided the Debenture Trustee
must
receive confirmation of its receipt of funds prior to being required
to
wire funds to holders), such payment shall be made in a manner whereby
the
holder receives credit for such payment on the date such interest
on such
Debenture becomes due. The mailing of such cheque or the making of
such
payment by other means shall, to the extent of the sum represented
thereby, plus the amount of any tax withheld as aforesaid, satisfy
and
discharge all liability for interest on such Debenture, unless in
the case
of payment by cheque, such cheque is not paid at par on presentation.
In
the event of non-receipt of any cheque for or other payment of interest
by
the person to whom it is so sent as aforesaid, the Trust will issue
to
such person a replacement cheque or other payment for a like amount
upon
being furnished with such evidence of non-receipt as it shall reasonably
require and upon being indemnified to its satisfaction. Notwithstanding
the foregoing, if the Trust is prevented by circumstances beyond
its
control (including, without limitation, any interruption in mail
service)
from making payment of any interest due on each Debenture in the
manner
provided above, the Trust may make payment of such interest or make
such
interest available for payment in any other manner acceptable to
the
Debenture Trustee with the same effect as though payment had been
made in
the manner provided above.
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(b)
|
Notwithstanding
Section 2.15(a), if a series of Debentures is represented by a Global
Debenture, then all payments of interest on the Global Debenture
shall be
made by cheque made payable to the Depository or its nominee for
subsequent payment to Beneficial Holders of interests in that Global
Debenture, unless the Trust and the Depository otherwise agree. None
of
the Trust, the Debenture Trustee or any agent of the Debenture Trustee
for
any Debenture issued as a Global Debenture will be liable or responsible
to any person for any aspect of the records related to or payments
made on
account of beneficial interests in any Global Debenture or for
maintaining, reviewing, or supervising any records relating to such
beneficial interests.
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2.16
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Limitation
on Non-Resident Ownership
|
At
no time may non-residents of Canada be the beneficial owners of a majority
of
the Trust Units on a fully diluted basis, whether by way of conversion of
Debentures to Trust Units, repayment of Debentures by issuance of Trust Units,
or otherwise, and AEI has informed the Debenture Trustee and the transfer agent
and registrar of the Trust Units of this restriction. The Debenture
Trustee may, upon receipt of written direction of the Trust, require
declarations as to the jurisdictions in which beneficial owners of Debentures
are resident. If the Trust becomes aware as a result of requiring
such declarations as to beneficial ownership, that the beneficial owners of
49%
or more of the Trust Units then outstanding, on a fully diluted basis, are,
or
may be, non-residents or that such a situation is imminent, it shall make a
public announcement thereof and shall notify the Debenture Trustee in writing
and the Debenture Trustee shall not accept a subscription for Debentures from
or
issue or register a transfer of Debentures to a person unless the person
provides a declaration that the person is not a non-resident. If,
notwithstanding the foregoing, the Trust determines that a majority of the
Trust
Units, on a fully diluted basis, are held by non-residents, the Trust shall
send
a notice to non-resident holders of Debentures or Trust Units, chosen in inverse
order to the order of acquisition or registration of the Debentures and Trust
Units or in such manner as the Trust may consider equitable and practicable,
requiring them to sell their Debentures or Trust Units or a portion
18
thereof
within a specified period of not less than 60 days. If the
Debentureholders or Unitholders receiving such notice have not sold the
specified number of Debentures or Trust Units or provided the Trust with
satisfactory evidence that they are not non-residents within such period, the
Trust may on behalf of such Debentureholder or Unitholder sell such Debentures
or Trust Units, as the case may be, and, in the interim, shall suspend the
rights attached to such Debentures or Trust Units, as the case may be, and
their
rights shall be limited to receiving the net proceeds of sale upon surrender
of
the certificates representing such Debentures or Trust Units.
ARTICLE 3
REGISTRATION,
TRANSFER, EXCHANGE AND OWNERSHIP
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3.1
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Fully
Registered Debentures
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|
(a)
|
With
respect to each series of Debentures issuable as Fully Registered
Debentures, the Trust shall cause to be kept
by and
at the principal office of the Debenture Trustee in Calgary and Toronto
and by the Debenture Trustee or such other registrar as the Trust,
with
the approval of the Debenture Trustee, may appoint at such other
place or
places, if any, as may be specified in the Debentures of such series
or as
the Trust may designate with the approval of the Debenture Trustee,
a
register in which shall be entered the names and addresses of the
holders
of Fully Registered Debentures and particulars of the Debentures
held by
them respectively and of all transfers of Fully Registered Debentures.
Such registration shall be noted on the Debentures by the Debenture
Trustee or other registrar unless a new Debenture shall be issued
upon
such transfer.
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(b)
|
No
transfer of a Fully Registered Debenture shall be valid unless made
on
such register referred to in Section 3.1(a) by the registered holder
or
such holder's executors, administrators or other legal representatives
or
an attorney duly appointed by an instrument in writing in form and
execution satisfactory to the Debenture Trustee or other registrar
upon
surrender of the Debentures together with a duly executed form of
transfer
acceptable to the Debenture Trustee and upon compliance with such
other
reasonable requirements as the Debenture Trustee or other registrar
may
prescribe, nor unless the name of the transferee shall have been
noted on
the Debenture by the Debenture Trustee or other registrar.
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3.2
|
Global
Debentures
|
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(a)
|
With
respect to each series of Debentures issuable in whole or in part
as one
or more Global Debentures, the Trust shall cause to be kept by and
at the
principal offices of the Debenture Trustee in Calgary and Toronto
and by
the Debenture Trustee or such other registrar as the Trust, with
the
approval of the Debenture Trustee, may appoint at such other place
or
places, if any, as the Trust may designate with the approval of the
Debenture Trustee, a register in which shall be entered the name
and
address of the holder of each such Global Debenture (being the Depository,
or its nominee, for such Global Debenture) as holder thereof and
particulars of the Global Debenture held by it, and of all transfers
thereof. If any Debentures of such series are at any time not Global
Debentures, the provisions of Section 3.1 shall govern with respect
to
registrations and transfers of such Debentures.
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(b)
|
Notwithstanding
any other provision of this Indenture, a Global Debenture may not
be
transferred by the registered holder thereof and accordingly, no
definitive certificates shall be issued to Beneficial Holders of
Debentures except in the following circumstances or as otherwise
specified
in a resolution of the trustee, Officer's Certificate or supplemental
indenture relating to a particular series of Additional Debentures:
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|
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(i)
|
Global
Debentures may be transferred by a Depository to a nominee of such
Depository or by a nominee of a Depository to such Depository or
to
another nominee of such Depository or by a Depository or its nominee
to a
successor Depository or its nominee;
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(ii)
|
Global
Debentures may be transferred at any time after the Depository for
such
Global Debentures (i) has notified the Debenture Trustee, or the
Trust has
notified the Debenture Trustee, that it is unwilling or unable to
continue
as Depository for such Global Debentures, or (ii) ceases to be
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19
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eligible
to be a Depository under Section 2.6(b), provided that at the time
of such
transfer the Trust has not appointed a successor Depository for such
Global Debentures;
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|
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(iii)
|
Global
Debentures may be transferred at any time after the Trust has determined,
in its sole discretion, to terminate the book-entry only registration
system in respect of such Global Debentures and has communicated
such
determination to the Debenture Trustee in writing;
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|
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(iv)
|
Global
Debentures may be transferred at any time after the Debenture Trustee
has
determined that an Event of Default has occurred and is continuing
with
respect to the Debentures of the series issued as a Global Debenture,
provided that Beneficial Holders of the Debentures representing,
in the
aggregate, not less than 25% of the
aggregate
principal amount of the Debentures of such series advise the Depository
in
writing, through the Depositary Participants, that the continuation
of the
book-entry only registration system for such series of Debentures
is no
longer in their best interest and also provided that at the time
of such
transfer the Debenture Trustee has not waived the Event of Default
pursuant to Section 8.3;
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(v)
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Global
Debentures may be transferred if required by applicable law; or
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(vi)
|
Global
Debentures may be transferred if the book-entry only registration
system
ceases to exist.
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(c)
|
With
respect to the Global Debentures, unless and until definitive certificates
have been issued to Beneficial Holders pursuant to subsection 3.2(b):
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(i)
|
the
Trust and the Debenture Trustee may deal with the Depository for
all
purposes (including paying interest on the Debentures) as the sole
holder
of such series of Debentures and the authorized representative of
the
Beneficial Holders;
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(ii)
|
the
rights of the Beneficial Holders shall be exercised only through
the
Depository and shall be limited to those established by law and agreements
between such Beneficial Holders and the Depository or the Depository
Participants;
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(iii)
|
the
Depository will make book-entry transfers among the Depository
Participants; and
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(iv)
|
whenever
this Trust Indenture requires or permits actions to be taken based
upon
instruction or directions of Debentureholders evidencing a specified
percentage of the outstanding Debentures, the Depository shall be
deemed
to be counted in that percentage only to the extent that it has received
instructions to such effect from the Beneficial Holders or the Depository
Participant, and has delivered such instructions to the Debenture
Trustee.
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(d)
|
Whenever
a notice or other communication is required to be provided to
Debentureholders, unless and until definitive certificate(s) have
been
issued to Beneficial Holders pursuant to this Section 3.2, the Debenture
Trustee shall provide all such notices and communications to the
Depository and the Depository shall deliver such notices and
communications to such Beneficial Holders in accordance with the
Securities Act
(Alberta) and other applicable securities laws (including
national
policies or instruments). Upon the termination of the book-entry
only
registration system on the occurrence of one of the conditions specified
in Section 3.2(b) with respect to a series of Debentures issued hereunder,
the Debenture Trustee shall notify all applicable Beneficial Holders,
through the Depository, of the availability of definitive Debenture
certificates. Upon surrender by the Depository of the certificate(s)
representing the Global Debentures and receipt of new registration
instructions from the Depository, the Debenture Trustee shall deliver
the
definitive Debenture certificates for such Debentures to the holders
thereof in accordance with the new registration instructions and
thereafter, the registration and transfer of such Debentures will
be
governed by Section 3.1 and the remaining Sections of this Article
3.
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20
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3.3
|
Transferee
Entitled to Registration
|
The
transferee of a Debenture shall be entitled, after the appropriate form of
transfer is lodged with the Debenture Trustee or other registrar and upon
compliance with all other conditions in that behalf required by this Indenture
or by law, to be entered on the register as the owner of such Debenture free
from all equities or rights of set-off or counterclaim between the Trust and
the
transferor or any previous holder of such Debenture, save in respect of equities
of which the Trust is required to take notice by statute or by order of a court
of competent jurisdiction.
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3.4
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No
Notice of Trusts
|
Neither
the Trust nor the Debenture Trustee nor any registrar shall be bound to take
notice of or see to the execution of any trust (other than that created by
this
Indenture) whether express, implied or constructive, in respect of any
Debenture, and may transfer the same on the direction of the person registered
as the holder thereof, whether named as trustee or otherwise, as though that
person were the beneficial owner thereof.
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3.5
|
Registers
Open for Inspection
|
The
registers referred to in Sections 3.1 and 3.2 shall at all reasonable times
be
open for inspection by the Trust, the Debenture Trustee or any Debentureholder.
Every registrar, including the Debenture Trustee, shall from time to time when
requested so to do by the Trust or by the Debenture Trustee, in writing, furnish
the Trust or the Debenture Trustee, as the case may be, with a list of names
and
addresses of holders of registered Debentures entered on the register kept
by
them and showing the principal amount and serial numbers of the Debentures
held
by each such holder, provided the Debenture Trustee shall be entitled to charge
a reasonable fee to provide such a list.
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3.6
|
Exchanges
of Debentures
|
|
(a)
|
Subject
to Section 3.7, Debentures in any authorized form or denomination,
other
than Global Debentures, may be exchanged for Debentures in any other
authorized form or denomination, of the same series and date of maturity,
bearing the same interest rate and of the same aggregate principal
amount
as the Debentures so exchanged.
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|
(b)
|
In
respect of exchanges of Debentures permitted by Section 3.6(a), Debentures
of any series may be exchanged only at the principal offices of the
Debenture Trustee in the cities of Calgary and Toronto or at such
other
place or places, if any, as may be specified in the Debentures of
such
series and at such other place or places as may from time to time
be
designated by the Trust with the approval of the Debenture Trustee.
Any
Debentures tendered for exchange shall be surrendered to the Debenture
Trustee. The Trust shall execute and the Debenture Trustee shall
certify
all Debentures necessary to carry out exchanges as aforesaid. All
Debentures surrendered for exchange shall be cancelled.
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|
(c)
|
Debentures
issued in exchange for Debentures which at the time of such issue
have
been selected or called for redemption at a later date shall be deemed
to
have been selected or called for redemption in the same manner and
shall
have noted thereon a statement to that effect.
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|
3.7
|
Closing
of Registers
|
|
(a)
|
Neither
the Trust nor the Debenture Trustee nor any registrar shall be required
to:
|
|
|
(i)
|
make
transfers or exchanges of Fully Registered Debentures on any Interest
Payment Date for such Debentures or during the seven preceding Business
Days;
|
|
|
(ii)
|
make
transfers or exchanges of any Debentures on the day of any selection
by
the Debenture Trustee of Debentures to be redeemed or during the
seven
preceding Business Days; or
|
21
|
|
(iii)
|
make
exchanges of any Debentures which will have been selected or called
for
redemption unless upon due presentation thereof for redemption such
Debentures shall not be redeemed.
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|
(b)
|
Subject
to any restriction herein provided, the Trust with the approval of
the
Debenture Trustee may at any time close any register for any series
of
Debentures, other than those kept at the principal offices of the
Debenture Trustee in Calgary and Toronto, and transfer the registration
of
any Debentures registered thereon to another register (which may
be an
existing register) and thereafter such Debentures shall be deemed
to be
registered on such other register. Notice of such transfer shall
be given
to the holders of such Debentures.
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|
3.8
|
Charges
for Registration, Transfer and Exchange
|
For
each Debenture exchanged, registered, transferred or discharged from
registration, the Debenture Trustee or other registrar, except as otherwise
herein provided, may make a reasonable charge for its services and in addition
may charge a reasonable sum for each new Debenture issued, and payment of such
charges and reimbursement of the Debenture Trustee or other registrar for any
stamp taxes or governmental or other charges required to be paid shall be made
by the party requesting such exchange, registration, transfer or discharge
from
registration as a condition precedent thereto. Notwithstanding the foregoing
provisions, no charge shall be made to a Debentureholder hereunder:
|
(a)
|
for
any exchange, registration, transfer or discharge from registration
of any
Debenture applied for within a period of two months from the date
of the
first delivery of Debentures of that series or, with respect to Debentures
subject to a Periodic Offering, within a period of two months from
the
date of delivery of any such Debenture;
|
|
(b)
|
for
any exchange of any interim or temporary Debenture or interim certificate
that has been issued under Section 2.9 for a definitive Debenture;
|
|
(c)
|
for
any exchange of a Global Debenture as contemplated in Section 3.2;
or
|
|
(d)
|
for
any exchange of any Debenture resulting from a partial redemption
under
Section 4.2.
|
|
3.9
|
Ownership
of Debentures
|
|
(a)
|
Unless
otherwise required by law, the person in whose name any registered
Debenture is registered shall for all the purposes of this Indenture
be
and be deemed to be the owner thereof and payment of or on account
of the
principal of and premium, if any, on such Debenture and interest
thereon
shall be made to such registered holder.
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|
(b)
|
The
registered holder for the time being of any registered Debenture
shall be
entitled to the principal, premium, if any, and/or interest evidenced
by
such instruments, respectively, free from all equities or rights
of
set-off or counterclaim between the Trust and the original or any
intermediate holder thereof and all persons may act accordingly and
the
receipt of any such registered holder for any such principal, premium
or
interest shall be a good discharge to the Trust and/or the Debenture
Trustee for the same and neither the Trust nor the Debenture Trustee
shall
be bound to inquire into the title of any such registered holder.
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|
(c)
|
Where
Debentures are registered in more than one name, the principal, premium,
if any, and interest from time to time payable in respect thereof
may be
paid to the order of all such holders, failing written instructions
from
them to the contrary, and the receipt of any one of such holders
therefor
shall be a valid discharge, to the Debenture Trustee, any registrar
and to
the Trust.
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|
(d)
|
In
the case of the death of one or more joint holders of any Debenture
the
principal, premium, if any, and interest from time to time payable
thereon
may be paid to the order of the survivor or survivors of such registered
holders and the receipt of any such survivor or survivors therefor
shall
be a valid discharge to the Debenture Trustee and any registrar and
to the
Trust.
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22
ARTICLE 4
Subject
to regulatory approval, the Trust shall have the right at its option to redeem,
either in whole at any time or in part from time to time before maturity, either
by payment of money, by issuance of Freely Tradeable Trust Units as provided
in
Section 4.6 or any combination thereof, any Debentures issued hereunder of
any
series which by their terms are made so redeemable (subject, however, to any
applicable restriction on the redemption of Debentures of such series) at such
rate or rates of premium, if any, and on such date or dates and in accordance
with such other provisions as shall have been determined at the time of issue
of
such Debentures and as shall have been expressed in this Indenture, in the
Debentures, in an Officer's Certificate, or in a supplemental indenture
authorizing or providing for the issue thereof, or in the case of Additional
Debentures issued pursuant to a Periodic Offering, in the Written Direction
of
the Trust requesting the certification and delivery thereof
Subject
to regulatory approval, the Trust shall also have the right at its option to
repay, either in whole or in part, on maturity, either by payment of money
in
accordance with Section 2.13, by issuance of Freely Tradeable Trust Units as
provided in Section 4.10 or any combination thereof, any Debentures issued
hereunder of any series which by their terms are made so repayable on maturity
(subject however, to any applicable restriction on the repayment of the
principal amount of the Debentures of such series) at such rate or rates of
premium, if any, and on such date or dates and in accordance with such other
provisions as shall have been determined at the time of issue of such Debenture
and shall have been expressed in this Indenture, in the Debentures, in an
Officer's Certificate, or in a supplemental indenture authorizing or providing
for the issue thereof, or in the case of Additional Debentures issued pursuant
to a Periodic Offering, in the Written Direction of the Trust requesting the
certification and delivery thereof.
If
less than all the Debentures of any series for the time being outstanding are
at
any time to be redeemed, the Debentures to be so redeemed shall be selected
by
the Debenture Trustee on a pro rata basis to the nearest multiple of $1,000
in
accordance with the principal amount of the Debentures registered in the name
of
each holder or in such other manner as the Debenture Trustee deems equitable,
subject to the approval of the Toronto Stock Exchange. Unless
otherwise specifically provided in the terms of any series of Debentures, no
Debenture shall be redeemed in part unless the principal amount redeemed is
$1,000 or a multiple thereof. For this purpose, the Debenture Trustee may make,
and from time to time vary, regulations with respect to the manner in which
such
Debentures may be drawn for redemption and regulations so made shall be valid
and binding upon all holders of such Debentures notwithstanding the fact that
as
a result thereof one or more of such Debentures may become subject to redemption
in part only. In the event that one or more of such Debentures becomes subject
to redemption in part only, upon surrender of any such Debentures for payment
of
the Redemption Price, together with interest accrued to but excluding the
Redemption Date, the Trust shall execute and the Debenture Trustee shall certify
and deliver without charge to the holder thereof or upon the holder's order
one
or more new Debentures for the unredeemed part of the principal amount of the
Debenture or Debentures so surrendered or, with respect to a Global Debenture,
the Depository shall make notations on the Global Debenture of the principal
amount thereof so redeemed. Unless the context otherwise requires, the terms
"Debenture" or "Debentures" as used in this Article 4 shall be deemed to mean
or
include any part of the principal amount of any Debenture which in accordance
with the foregoing provisions has become subject to redemption.
Notice
of redemption (the "Redemption
Notice") of any series of Debentures shall be given to the holders of the
Debentures so to be redeemed not more than 60 days nor less than 30 days prior
to the date fixed for redemption (the "Redemption Date") in the
manner provided in Section 14.2. Every such notice
shall
specify the aggregate principal amount of Debentures called for redemption,
the
Redemption Date, the Redemption Price and the places of payment and shall state
that interest upon the principal amount of Debentures called for redemption
shall cease to be payable from and after the Redemption Date. In addition,
unless all the outstanding Debentures are to be redeemed, the Redemption Notice
shall specify:
23
|
(a)
|
the
distinguishing letters and numbers of the registered Debentures which
are
to be redeemed (or of such thereof as are registered in the name
of such
Debentureholder);
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|
(b)
|
in
the case of a published notice, the distinguishing letters and numbers
of
the Debentures which are to be redeemed or, if such Debentures are
selected by terminal digit or other similar system, such particulars
as
may be sufficient to identify the Debentures so selected;
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|
(c)
|
in
the case of a Global Debenture, that the redemption will take place
in
such manner as may be agreed upon by the Depository, the Debenture
Trustee
and the Trust; and
|
|
(d)
|
in
all cases, the principal amounts of such Debentures or, if any such
Debenture is to be redeemed in part only, the principal amount of
such
part.
|
In
the event that all Debentures to be redeemed are registered Debentures,
publication shall not be required.
Notice
having been given as aforesaid, all the Debentures so called for redemption
shall thereupon be and become due and payable at the Redemption Price, together
with accrued interest to but excluding the Redemption Date, on the Redemption
Date specified in such notice, in the same manner and with the same effect
as if
it were the date of maturity specified in such Debentures, anything therein
or
herein to the contrary notwithstanding, and from and after such Redemption
Date,
if the monies necessary to redeem, or the Trust Units to be issued to redeem,
such Debentures shall have been deposited as provided in Section 4.5 and affidavits or
other
proof satisfactory to the Debenture Trustee as to the publication and/or mailing
of such notices shall have been lodged with it, interest upon the Debentures
shall cease. If any question shall arise as to whether any notice has been
given
as above provided and such deposit made, such question shall be decided by
the
Debenture Trustee whose decision shall be final and binding upon all parties
in
interest.
Redemption
of Debentures shall be provided for by the Trust depositing with the Debenture
Trustee or any paying agent to the order of the Debenture Trustee, on or before
11:00 a.m. Calgary Time on the Business Day immediately prior to the Redemption
Date specified in such notice, such sums of money, or certificates representing
such Trust Units, or both as the case may be, as may be sufficient to pay the
Redemption Price of the Debentures so called for redemption, plus accrued and
unpaid interest thereon up to but excluding the Redemption Date, provided the
Trust may elect to satisfy this requirement by providing the Debenture Trustee
with a cheque for such amounts required under this Section 4.5 post-dated to the
Redemption Date. The Trust shall also deposit with the Debenture Trustee a
sum
of money sufficient to pay any charges or expenses which may be incurred by
the
Debenture Trustee in connection with such redemption. Every such deposit shall
be irrevocable. From the sums so deposited, or certificates so deposited, or
both, the Debenture Trustee shall pay or cause to be paid, or issue or cause
to
be issued, to the holders of such Debentures so called for redemption, upon
surrender of such Debentures, the principal, premium (if any) and interest
(if
any) to which they are respectively entitled on redemption.
|
(a)
|
Subject
to the other provisions of this Section 4.6, the Trust may, at its
option,
elect to satisfy its obligation to pay all or any portion of the
Redemption Price by issuing and delivering to holders on the Redemption
Date that number of Freely Tradeable Trust Units obtained by dividing
the
Redemption Price by 95% of the
Current
Market Price of the Trust Units on the Redemption Date (the "Unit Redemption
Right").
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|
(b)
|
The
Trust shall exercise the Unit Redemption Right by so specifying in
the
Redemption Notice and shall specify the aggregate principal amount
of
Debentures in respect of which it is exercising the Unit Redemption
Right
in such notice.
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24
|
(c)
|
The
Trust's right to exercise the Unit Redemption Right shall be conditional
upon the following conditions being met on the Business Day preceding
the
Redemption Date:
|
|
|
(i)
|
the
qualification of the Trust Units to be issued on exercise of the
Unit
Redemption Right as Freely Tradeable;
|
|
|
(ii)
|
the
listing of such additional Trust Units on each stock exchange on
which the
Trust Units are then listed;
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|
|
(iii)
|
the
Trust being a reporting issuer in good standing under Applicable
Securities Legislation where the distribution of such Trust Units
occurs;
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|
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
|
|
(v)
|
the
receipt by the Debenture Trustee of an Officer's Certificate stating
that
conditions (i), (ii), (iii) and (iv) above have been satisfied and
setting
forth the number of Trust Units to be delivered for each $1,000 principal
amount of Debentures and the Current Market Price of the Trust Units
on
the Redemption Date; and
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|
|
(vi)
|
the
receipt by the Debenture Trustee of an opinion of Counsel to the
effect
that such Trust Units have been duly authorized and, when issued
and
delivered pursuant to the terms of this Indenture in payment of the
Redemption Price, will be validly issued as fully paid and non-assessable,
that conditions (i) and (ii) above have been satisfied and that,
relying
exclusively on certificates of good standing issued by the relevant
securities authorities, condition (iii) above is satisfied, except
that
the opinion in respect of condition (iii) need not be expressed with
respect to those provinces where certificates are not issued.
|
If
the foregoing conditions are not satisfied prior to the close of business on
the
Business Day preceding the Redemption Date, the Trust shall pay the Redemption
Price in cash in accordance with Section 4.5 unless the Debentureholder waives
the conditions which are not satisfied.
|
(d)
|
In
the event that the Trust duly exercises its Unit Redemption Right,
upon
presentation and surrender of the Debentures for payment on the Redemption
Date, at any place where a register is maintained pursuant to Article
3 or
any other place specified in the Redemption Notice, the Trust shall
on or
before 11:00 a.m. Calgary Time on the Business Day immediately prior
to
the Redemption Date make the delivery to the Debenture Trustee for
delivery to and on account of the holders, of certificates representing
the Freely Tradeable Trust Units to which such holders are entitled.
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|
(e)
|
No
fractional Trust Units shall be delivered upon the exercise of the
Unit
Redemption Right but, in lieu thereof, the Trust shall pay to the
Debenture Trustee for the account of the holders, at the time contemplated
in Section 4.6(d), the cash equivalent thereof determined on the
basis of
the Current Market Price of the Trust Units on the Redemption Date
(less
any tax required to be deducted, if any).
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|
(f)
|
A
holder shall be treated as the unitholder of record of the Trust
Units
issued on due exercise by the Trust of its Unit Redemption Right
effective
immediately after the close of business on the Redemption Date, and
shall
be entitled to all substitutions therefor, all income earned thereon
or
accretions thereto and all dividends or distributions (including
unit
dividends and dividends or distributions in kind) thereon and arising
thereafter, and in the event that the Debenture Trustee receives
the same,
it shall hold the same in trust for the benefit of such holder.
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|
(g)
|
The
Trust shall at all times reserve and keep available out of its authorized
Trust Units (if the number thereof is or becomes limited), solely
for the
purpose of issue and delivery upon the exercise of the Trust's Unit
Redemption Right as provided herein, and shall issue to Debentureholders
to whom Trust Units will be issued pursuant to exercise of the Unit
Redemption Right, such number of Trust Units as shall be
|
25
|
|
issuable
in such event. All Trust Units which shall be so issuable shall be
duly
and validly issued as fully paid and non-assessable.
|
|
(h)
|
The
Trust shall comply with all Applicable Securities Legislation regulating
the issue and delivery of Trust Units upon exercise of the Unit Redemption
Right and shall cause to be listed and posted for trading such Trust
Units
on each stock exchange on which the Trust Units are then listed.
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|
(i)
|
The
Trust shall from time to time promptly pay, or make provision satisfactory
to the Debenture Trustee for the payment of, all taxes and charges
which
may be imposed by the laws of Canada or any province thereof (except
income tax, withholding tax or security transfer tax, if any) which
shall
be payable with respect to the issuance or delivery of Freely Tradeable
Trust Units to holders upon exercise of the Unit Redemption Right
pursuant
to the terms of the Debentures and of this Indenture.
|
|
(j)
|
If
the Trust elects to satisfy its obligation to pay all or any portion
of
the Redemption Price by issuing Freely Tradeable Trust Units in accordance
with this Section 4.6 and if the Redemption Price (or any portion
thereof)
to which a holder is entitled is subject to withholding taxes and
the
amount of the cash payment of the Redemption Price, if any, is
insufficient to satisfy such withholding taxes, the Debenture Trustee,
on
the written direction of the Trust but for the account of the holder,
shall sell, through the investment banks, brokers or dealers selected
by
the Trust, out of the Freely Tradeable Trust Units issued by the
Trust for
this purpose, such number of Freely Tradeable Trust Units that together
with the cash payment of the Redemption Price, if any, is sufficient
to
yield net proceeds (after payment of all costs) to cover the amount
of
taxes required to be withheld, and shall remit same on behalf of
the Trust
to the proper tax authorities within the period of time prescribed
for
this purpose under applicable laws.
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|
(k)
|
Each
certificate representing Freely Tradeable Trust Units issued in payment
of
the Redemption Price of Debentures bearing the U.S. Legend set forth
in
Section 2.14, as well as all certificates issued in exchange for
or in
substitution of the foregoing securities, shall bear the U.S. Legend
set
forth in Section 2.14; provided that if the Trust Units are being
sold
outside the United States in accordance with Rule 904 of Regulation
S, and
provided that the Trust is a "foreign issuer" within the meaning
of
Regulation S at the time of sale, the U.S. Legend may be removed
by
providing a declaration to the Debenture Trustee, as registrar and
transfer agent for the Trust Units, as set forth in Schedule E hereto (or
as the Trust or the Debenture Trustee may prescribe from time to
time);
and provided further that, if any such securities are being sold
within
the United States in accordance with Rule 144 under the 1933 Act,
the U.S.
Legend may be removed by delivery to the Debenture Trustee, as registrar
and transfer agent for the Trust Units, of an opinion of Counsel,
of
recognized standing reasonably satisfactory to the Trust, that the
U.S.
Legend is no longer required under applicable requirements of the
1933 Act
or state securities laws. Provided that the Debenture Trustee obtains
confirmation from the Trust that such Counsel is satisfactory to
it, it
shall be entitled to rely on such opinion of Counsel without further
inquiry.
|
|
(l)
|
Interest
accrued and unpaid on the Debentures on the Redemption Date will
be paid
to holders of Debentures, in cash, in the manner contemplated in
Section
4.5.
|
In
case the holder of any Debenture so called for redemption shall fail on or
before the Redemption Date so to surrender such holder's Debenture, or shall
not
within such time accept payment of the redemption monies payable, or take
delivery of certificates representing such Trust Units issuable in respect
thereof, or give such receipt therefor, if any, as the Debenture Trustee may
require, such redemption monies may be set aside in trust, or such certificates
may be held in trust without interest, either in the deposit department of
the
Debenture Trustee or in a chartered bank, and such setting aside shall for
all
purposes be deemed a payment to the Debentureholder of the sum so set aside
and,
to that extent, the Debenture shall thereafter not be considered as outstanding
hereunder and the Debentureholder shall have no other right except to receive
payment out of the monies so paid and deposited, or take delivery of the
certificates so deposited, or both, upon surrender and delivery up of such
holder's Debenture of the Redemption Price, as the case may be, of such
Debenture. In the event that any money, or certificates, required to be
deposited hereunder with the Debenture Trustee or any depository or paying
agent
on account of principal, premium, if any, or interest, if any, on Debentures
issued hereunder shall remain so
26
deposited
for a period of six years from the Redemption Date, then such monies or
certificates shall at the end of such period be paid over or delivered over
by
the Debenture Trustee or such depository or paying agent to the Trust on its
demand, and thereupon the Debenture Trustee shall not be responsible to
Debentureholders for any amounts owing to them and subject to applicable law,
thereafter the holder of a Debenture in respect of which such money was so
repaid to the Trust shall have no rights in respect thereof except to obtain
payment of the money or certificates due from the Trust, subject to any
limitation period provided by the laws of Alberta. Notwithstanding the
foregoing, the Debenture Trustee will pay any remaining funds prior to the
expiry of six years after the Redemption Date to the Trust upon receipt from
the
Trust, or one of its Subsidiaries, of an uncontested letter of credit from
a
Canadian chartered bank in an amount equal to or in excess of the amount of
the
remaining funds. If the remaining funds are paid to the Trust prior to the
expiry of six years after the Redemption Date, the Trust shall reimburse the
Debenture Trustee for any amounts required to be paid by the Debenture Trustee
to a holder of a Debenture pursuant to the redemption after the date of such
payment of the remaining funds to the Trust but prior to six years after the
redemption.
Subject
to the provisions of Sections 4.2 and 4.9 as to Debentures redeemed or purchased
in part, all Debentures redeemed and paid under this Article 4 shall forthwith
be delivered to the Debenture Trustee and cancelled and no Debentures shall
be
issued in substitution therefor.
Unless
otherwise specifically provided with respect to a particular series of
Debentures, the Trust may, if it is not at the time in default hereunder, at
any
time and from time to time, purchase Debentures in the market (which shall
include purchases from or through an investment dealer or a firm holding
membership on a recognized stock exchange) or by tender or by contract, at
any
price. All Debentures so purchased may, at the option of the Trust, be delivered
to the Debenture Trustee and shall be cancelled and no Debentures shall be
issued in substitution therefor.
If,
upon an invitation for tenders, more Debentures are tendered at the same lowest
price that the Trust is prepared to accept, the Debentures to be purchased
by
the Trust shall be selected by the Debenture Trustee on a pro rata basis or in such
other manner consented to by the Toronto Stock Exchange which the Debenture
Trustee considers appropriate, from the Debentures tendered by each tendering
Debentureholder who tendered at such lowest price. For this purpose the
Debenture Trustee may make, and from time to time amend, regulations with
respect to the manner in which Debentures may be so selected, and regulations
so
made shall be valid and binding upon all Debentureholders, notwithstanding
the
fact that as a result thereof one or more of such Debentures become subject
to
purchase in part only. The holder of a Debenture of which a part only is
purchased, upon surrender of such Debenture for payment, shall be entitled
to
receive, without expense to such holder, one or more new Debentures for the
unpurchased part so surrendered, and the Debenture Trustee shall certify and
deliver such new Debenture or Debentures upon receipt of the Debenture so
surrendered or, with respect to a Global Debenture, the Depository shall make
notations on the Global Debenture of the principal amount thereof so
purchased.
|
(a)
|
Subject
to the other provisions of this Section 4.10, the Trust may, at its
option, elect to satisfy its obligation to repay the principal amount
of
all or any portion of the principal amount of the Debentures outstanding
by issuing and delivering to holders on the maturity of such Debentures
(the "Maturity
Date") that number of Freely Tradeable Trust Units obtained by
dividing the $1,000 principal amount of the Debentures by 95% of the
Current
Market Price of the Trust Units on the Maturity Date (the "Unit Repayment
Right").
|
|
(b)
|
The
Trust shall exercise the Unit Repayment Right by so specifying in
the
Maturity Notice, which shall be delivered to the Debenture Trustee
and the
holders of Debentures not more than 60 days and not less than 30
days
prior to the Maturity Date.
|
27
|
(c)
|
The
Trust's right to exercise the Unit Repayment Right shall be conditional
upon the following conditions being met on the Business Day preceding
the
Maturity Date:
|
|
|
(i)
|
the
qualification of the Trust Units to be issued on exercise of the
Unit
Repayment Right as Freely Tradeable;
|
|
|
(ii)
|
the
listing of such additional Trust Units on each stock exchange on
which the
Trust Units are then listed;
|
|
|
(iii)
|
the
Trust being a reporting issuer in good standing under Applicable
Securities Legislation where the distribution of such Trust Units
occurs;
|
|
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
|
|
(v)
|
the
receipt by the Debenture Trustee of an Officer's Certificate stating
that
conditions (i), (ii), (iii) and (iv) above have been satisfied and
setting
forth the number of Trust Units to be delivered for each $1,000 principal
amount of Debentures and the Current Market Price of the Trust Units
on
the Maturity Date; and
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|
|
(vi)
|
the
receipt by the Debenture Trustee of an opinion of Counsel to the
effect
that such Trust Units have been duly authorized and, when issued
and
delivered pursuant to the terms of this Indenture in payment of the
principal amount of the Debentures outstanding will be validly issued
as
fully paid and non-assessable, that conditions (i) and (ii) above
have
been satisfied and that, relying exclusively on certificates of good
standing issued by the relevant securities authorities, condition
(iii)
above is satisfied, except that the opinion in respect of condition
(iii)
need not be expressed with respect to those provinces where certificates
are not issued.
|
If
the foregoing conditions are not satisfied prior to the close of business on
the
Business Day preceding the Maturity Date, the Trust shall pay the principal
amount of the Debentures outstanding in cash in accordance with Section 2.13,
unless the Debentureholder waives the conditions which are not satisfied.
|
(d)
|
In
the event that the Trust duly exercises its Unit Repayment Right,
upon
presentation and surrender of the Debentures for payment on the Maturity
Date, at any place where a register is maintained pursuant to Article
3 or
any other place specified in the Maturity Notice, the Trust shall
on or
before 11:00 a.m. (Calgary time) on the Business Day immediately
prior to
the Maturity Date make the delivery to the Debenture Trustee for
delivery
to and on account of the holders, of certificates representing the
Freely
Tradeable Trust Units to which such holders are entitled. The Trust
shall
also deposit with the Debenture Trustee a sum of money sufficient
to pay
any charges or expenses which may be incurred by the Debenture Trustee
in
connection with the Unit Repayment Right. Every such deposit shall
be
irrevocable. From the certificates so deposited in addition to amounts
payable by the Debenture Trustee pursuant to Section 2.13, the Debenture
Trustee shall pay or cause to be paid, to the holders of such Debentures,
upon surrender of such Debentures, the principal amount of and premium
(if
any) on the Debentures to which they are respectively entitled on
maturity
and deliver to such holders the certificates to which such holders
are
entitled. The delivery of such certificates to the Debenture Trustee
will
satisfy and discharge the liability of the Trust for the Debentures
to
which the delivery of certificates relates to the extent of the amount
delivered (plus the amount of any certificates sold to pay applicable
taxes in accordance with this Section 4.10) and such Debentures will
thereafter to that extent not be considered as outstanding under
this
Indenture and such holder will have no other right in regard thereto
other
than to receive out of the certificates so delivered, the certificate(s)
to which it is entitled.
|
|
(e)
|
No
fractional Trust Units shall be delivered upon the exercise of the
Unit
Repayment Right but, in lieu thereof, the Trust shall pay to the
Debenture
Trustee for the account of the holders, at the time contemplated
in
Section 4.10(d), the cash equivalent thereof determined on the basis
of
the Current Market Price of the Trust Units on the Maturity Date
(less any
tax required to be deducted, if any).
|
28
|
(f)
|
A
holder shall be treated as the unitholder of record of the Trust
Units
issued on due exercise by the Trust of its Unit Repayment Right effective
immediately after the close of business on the Maturity Date, and
shall be
entitled to all substitutions therefor, all income earned thereon
or
accretions thereto and all dividends or distributions (including
unit
dividends and dividends or distributions in kind) thereon and arising
thereafter, and in the event that the Debenture Trustee receives
the same,
it shall hold the same in trust for the benefit of such holder.
|
|
(g)
|
The
Trust shall at all times reserve and keep available out of its authorized
Trust Units (if the number thereof is or becomes limited), solely
for the
purpose of issue and delivery upon the exercise of the Trust's Unit
Repayment Right as provided herein, and shall issue to Debentureholders
to
whom Trust Units will be issued pursuant to exercise of the Unit
Repayment
Right, such number of Trust Units as shall be issuable in such event.
All
Trust Units which shall be so issuable shall be duly and validly
issued as
fully paid and non-assessable.
|
|
(h)
|
The
Trust shall comply with all Applicable Securities Legislation regulating
the issue and delivery of Trust Units upon exercise of the Unit Repayment
Right and shall cause to be listed and posted for trading such Trust
Units
on each stock exchange on which the Trust Units are then listed.
|
|
(i)
|
The
Trust shall from time to time promptly pay, or make provision satisfactory
to the Debenture Trustee for the payment of, all taxes and charges
which
may be imposed by the laws of Canada or any province thereof (except
income tax, withholding tax or security transfer tax, if any) which
shall
be payable with respect to the issuance or delivery of Freely Tradeable
Trust Units to holders upon exercise of the Unit Repayment Right
pursuant
to the terms of the Debentures and of this Indenture.
|
|
(j)
|
If
the Trust elects to satisfy its obligation to pay all or any portion
of
the principal amount of Debentures due on maturity by issuing Freely
Tradeable Trust Units in accordance with this Section 4.10 and if
the
principal amount (or any portion thereof) to which a holder is entitled
is
subject to withholding taxes and the amount of the cash payment of
the
principal amount due on maturity, if any, is insufficient to satisfy
such
withholding taxes, the Debenture Trustee, on the written direction
of the
Trust but for the account of the holder, shall sell, through the
investment banks, brokers or dealers selected by the Trust, out of
the
Freely Tradeable Trust Units issued by the Trust for this purpose,
such
number of Freely Tradeable Trust Units that together with the cash
component of the principal amount due on maturity is sufficient to
yield
net proceeds (after payment of all costs) to cover the amount of
taxes
required to be withheld, and shall remit same on behalf of the Trust
to
the proper tax authorities within the period of time prescribed for
this
purpose under applicable laws.
|
|
(k)
|
Each
certificate representing Freely Tradeable Trust Units issued in payment
of
the principal amount of Debentures bearing the U.S. Legend set forth
in
Section 2.14, as well as all certificates issued in exchange for
or in
substitution of the foregoing securities, shall bear the U.S. Legend
set
forth in Section 2.14; provided that if the Trust Units are being
sold
outside the United States in accordance with Rule 904 of Regulation
S, and
provided that the Trust is a "foreign issuer" within the meaning
of
Regulation S at the time of sale, the U.S. Legend may be removed
by
providing a declaration to the Debenture Trustee, as registrar and
transfer agent for the Trust Units, as set forth in Schedule E hereto
(or as
the Trust or the Debenture Trustee may prescribe from time to time);
and
provided further that, if any such securities are being sold within
the
United States in accordance with Rule 144 under the 1933 Act, the
U.S.
Legend may be removed by delivery to the Debenture Trustee, as registrar
and transfer agent for the Trust Units, of an opinion of Counsel,
of
recognized standing reasonably satisfactory to the Trust, that the
U.S.
Legend is no longer required under applicable requirements of the
1933 Act
or state securities laws. Provided that the Debenture Trustee obtains
confirmation from the Trust that such Counsel is satisfactory to
it, it
shall be entitled to rely on such opinion of Counsel without further
inquiry.
|
|
(l)
|
Interest
accrued and unpaid on the Debentures on the Maturity Date will be
paid to
holders of Debentures, in cash, in the manner contemplated in Section
2.15.
|
29
ARTICLE 5
The
indebtedness, liabilities and obligations of the Trust hereunder (except as
provided in Section 15.15) or under the Debentures, whether on account of
principal, interest or otherwise, but excluding the issuance of Trust Units
or
other securities similar in nature thereto upon any conversion pursuant to
Article 6, upon any redemption pursuant to Article 4, or at maturity
pursuant to Article 4 (collectively the "Debenture Liabilities"), shall
be subordinated and postponed and subject in right of payment, to the extent
and
in the manner hereinafter set forth in the following sections of this Article
5,
to the full and final payment of all Senior Indebtedness of the Trust and each
holder of any such Debenture by his acceptance thereof agrees to and shall
be
bound by the provisions of this Article 5.
|
5.2
|
In
the event of any dissolution, winding-up, liquidation, bankruptcy, insolvency,
receivership, creditor enforcement or realization or other similar proceedings
relating to the Trust or any of its property (whether voluntary or involuntary,
partial or complete) or any other marshalling of the assets and liabilities
of
the Trust or any sale of all or substantially all of the assets of the
Trust:
|
(a)
|
all
Senior Indebtedness shall first be paid in full, or provision made
for
such payment, before any payment is made on account of Debenture
Liabilities;
|
|
(b)
|
any
payment or distribution of assets of the Trust, whether in cash,
property
or securities, to which the holders of the Debentures or the Debenture
Trustee on behalf of such holders would be entitled except for the
provisions of this Article 5, shall be paid or delivered by the trustee
in
bankruptcy, receiver, assignee for the benefit of creditors, or other
liquidating agent making such payment or distribution, directly to
the
holders of Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which
any
instruments evidencing any of such Senior Indebtedness may have been
issued, to the extent necessary to pay all Senior Indebtedness in
full
after giving effect to any concurrent payment or distribution, or
provision therefor, to the holders of such Senior Indebtedness; and
|
|
(c)
|
the
Senior Creditors or a receiver or a receiver-manager of the Trust
or of
all or part of its assets or any other enforcement agent may sell,
mortgage, or otherwise dispose of the Trust assets in whole or in
part,
free and clear of all Debenture Liabilities and without the approval
of
the Debentureholders or the Debenture Trustee or any requirement
to
account to the Debenture Trustee or the Debentureholders.
|
The
rights and priority of the Senior Indebtedness and the subordination pursuant
hereto shall not be affected by :
|
|
(i)
|
the
time, sequence or order of creating, granting, executing, delivering
of,
or registering, perfecting or failing to register or perfect any
security
notice, caveat, financing statement or other notice in respect of
the
Senior Security;
|
|
|
(ii)
|
the
time or order of the attachment, perfection or crystallization of
any
security constituted by the Senior Security;
|
|
|
(iii)
|
the
taking of any collection, enforcement or realization proceedings
pursuant
to the Senior Security;
|
|
|
(iv)
|
the
date of obtaining of any judgment or order of any bankruptcy court
or any
court administering bankruptcy, insolvency or similar proceedings
as to
the entitlement of the Senior Creditors, or any of them or the
Debentureholders or other Trustee or any of them to any money or
property
of the Trust;
|
30
|
|
(v)
|
the
failure to exercise any power or remedy reserved to the Senior Creditors
under the Senior Security or to insist upon a strict compliance with
any
terms thereof;
|
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|
(vi)
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whether
any Senior Security is now perfected, hereafter ceases to be perfected,
is
avoidable by any trustee in bankruptcy or like official or is otherwise
set aside, invalidated or lapses;
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(vii)
|
the
date of giving or failing to give notice to or making demand upon
the
Trust or AEI; or
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(viii)
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any
other matter whatsoever.
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Subject
to the prior payment in full of all Senior Creditors, the Debentureholders
shall
be subrogated to the rights of the Senior Creditors to receive payments or
distributions of assets of the Trust to the extent of the application thereto
of
such payments or other assets which would have been received by the
Debentureholders but for the provisions hereof until the principal of and
interest on the Debentures shall be paid in full, and no such payments or
distributions to the Debentureholders of cash, property or securities, which
otherwise would be payable or distributable to the Senior Creditors, shall,
as
between the Trust, its creditors other than the Senior Creditors, and the
Debentureholders, be deemed to be a payment by the Trust to the Senior Creditors
or on account of the Senior Indebtedness, it being understood that the
provisions of this Article 5 are and are intended solely for the purpose of
defining the relative rights of the Debentureholders, on the one hand, and
the
Senior Creditors, on the other hand.
The
Debenture Trustee, for itself and on behalf of each of the Debentureholders,
hereby waives any and all rights to require a Senior Creditor to pursue or
exhaust any rights or remedies with respect to the Trust or any property and
assets subject to the Senior Security or in any other manner to require the
marshalling of property, assets or security in connection with the exercise
by
the Senior Creditors of any rights, remedies or recourses available to
them.
Nothing
contained in this Article 5 or elsewhere in this Indenture or in the Debentures
is intended to or shall impair, as between the Trust, its creditors other than
the Senior Creditors, and the Debentureholders, the obligation of the Trust,
which is absolute and unconditional, to pay to the Debentureholders the
principal of and interest on the Debentures, as and when the same shall become
due and payable in accordance with their terms, or affect the relative rights
of
the Debentureholders and creditors of the Trust other than the Senior Creditors,
nor shall anything herein or therein prevent the Debenture Trustee or the
Debentureholders from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this
Article 5 of the Senior Creditors.
Upon
the maturity of any Senior Indebtedness by lapse of time, acceleration or
otherwise, or any other enforcement of any Senior Indebtedness, then all such
Senior Indebtedness shall first be paid in full, or shall first have been duly
provided for, before any payment is made on account of the Debenture
Liabilities.
In
case of default with respect to any Senior Indebtedness permitting a Senior
Creditor to demand payment or accelerate the maturity thereof, unless and until
such default shall have been cured or waived or shall have ceased to exist,
no
payment (by purchase of Debentures or otherwise) shall be made by the Trust
with
respect to the Debenture Liabilities and neither the Debenture Trustee nor
the
Debentureholders shall be entitled to demand, institute proceedings for the
collection of, or receive any payment or benefit (including without limitation
by set-off, combination of accounts or otherwise in any manner whatsoever)
on
account of the Debentures after the happening of such a default (except as
provided in Section 5.8),
and unless and until
such default shall have been cured or waived or
shall have ceased to exist, such payments shall be held in trust for the benefit
of, and, if and when such Senior Indebtedness shall have become due and payable,
shall be paid over to, the Senior Creditors or to the trustee
31
or
trustees under any indenture under which any instruments evidencing an amount
of
the Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been, paid in full, after giving effect to any concurrent payment
or
distribution to such Senior Creditors.
The
fact that any payment hereunder is prohibited by this Section 5.5 shall not
prevent the failure to make such payment from being an Event of Default
hereunder.
Nothing
contained in this Article 5 or elsewhere in this Indenture, or in any of the
Debentures, shall affect the obligation of the Trust to make, or prevent the
Trust from making, at any time except as prohibited by, Section 5.2 or 5.5,
any payment of principal of or interest on the Debentures. The fact
that any such payment is prohibited by Section 5.2 or 5.5 shall not prevent
the failure to make such payment from being an Event of Default hereunder.
Nothing contained in this Article 5 or elsewhere in this Indenture, or in any
of
the Debentures, shall prevent the conversion of the Debentures or, except as
prohibited by Section 5.2 or 5.5, the application by the Debenture Trustee
of any monies deposited with the Debenture Trustee hereunder for the purpose,
to
the payment of or on account of the Debenture Liabilities.
Each
holder of Debentures by his acceptance thereof authorizes and directs the
Debenture Trustee on his behalf to take such action as may be necessary or
appropriate to effect the subordination as provided in this Article 5 and
appoints the Debenture Trustee his attorney-in-fact for any and all such
purposes. Upon request of the Trust, and upon being furnished an Officer's
Certificate stating that one or more named persons are Senior Creditors and
specifying the amount and nature of the Senior Indebtedness of such Senior
Creditor, the Debenture Trustee shall enter into a written agreement or
agreements with the Trust and the person or persons named in such Officer's
Certificate providing that such person or persons are entitled to all the rights
and benefits of this Article 5 as a Senior Creditor and for such other matters,
such as an agreement not to amend the provisions of this Article 5 and the
definitions used herein without the consent of such Senior Creditor, as the
Senior Creditor may reasonably request. Such agreement shall be conclusive
evidence that the indebtedness specified therein is Senior Indebtedness,
however, nothing herein shall impair the rights of any Senior Creditor who
has
not entered into such an agreement.
Notwithstanding
the provisions of this Article 5 or any provision in this Indenture or in the
Debentures contained, the Debenture Trustee will not be charged with knowledge
of any Senior Indebtedness or of any default in the payment thereof, or of
the
existence of any other fact that would prohibit the making of any payment of
monies to or by the Debenture Trustee, or the taking of any other action by
the
Debenture Trustee, unless and until the Debenture Trustee has received written
notice thereof from the Trust, any Debentureholder or any Senior
Creditor.
The
Debenture Trustee is entitled to all the rights set forth in this Article 5
with
respect to any Senior Indebtedness at the time held by it, to the same extent
as
any other holder of Senior Indebtedness, and nothing in this Indenture deprives
the Debenture Trustee of any of its rights as such holder.
No
right of any present or future holder of any Senior Indebtedness to enforce
the
subordination herein will at any time or in any way be prejudiced or impaired
by
any act or failure to act on the part of the Trust or by any non-compliance
by
the Trust with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with.
32
The
holders of the Senior Indebtedness have the right to extend, renew, modify
or
amend the terms of the Senior Indebtedness or any security therefor and to
release, sell or exchange such security and otherwise to deal freely with the
Trust, all without notice to or consent of the Debentureholders or the Debenture
Trustee and without affecting the liabilities and obligations of the parties
to
this Indenture or the Debentureholders or the Debenture Trustee.
This
Indenture does not restrict the Trust from incurring additional indebtedness
for
borrowed money or otherwise or mortgaging, pledging or charging its properties
to secure any indebtedness.
The
subordination of the Debentures to the Senior Indebtedness and the provisions
of
this Article 5 do not impair in any way the right of a Debentureholder to
convert its Debentures pursuant to Article 6.
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5.14
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In
the event that any of the Senior Indebtedness shall be paid in full and
subsequently, for whatever reason, such formerly paid or satisfied Senior
Indebtedness becomes unpaid or unsatisfied, the terms and conditions of this
Article 5 shall be reinstated and the provisions of this Article shall again
be
operative until all Senior Indebtedness is repaid in full, provided that such
reinstatement shall not give the Senior Creditors any rights or recourses
against the Debenture Trustee or the Debentureholders for amounts paid to the
Debentureholders subsequent to such payment or satisfaction in full and prior
to
such reinstatement.
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5.15
|
The
Debenture Trustee, for itself and on behalf of the Debentureholders, agrees
that
it shall not contest or bring into question the validity, perfection or
enforceability of any of the Senior Security, or the relative priority of the
Senior Security.
ARTICLE 6
Any
Debentures issued hereunder of any series which by their terms are convertible
(subject, however, to any applicable restriction of the conversion of Debentures
of such series) will be convertible into Trust Units or other securities, at
such conversion rate or rates, and on such date or dates and in accordance
with
such other provisions as shall have been determined at the time of issue of
such
Debentures and shall have been expressed in this Indenture, in such Debentures,
in an Officer's Certificate, or in a supplemental indenture authorizing or
providing for the issue thereof.
Such
right of conversion shall extend only to the maximum number of whole Trust
Units
into which the aggregate principal amount of the Debenture or Debentures
surrendered for conversion at any one time by the holder thereof may be
converted. Fractional interests in Trust Units shall be adjusted for in the
manner provided in Section 6.6.
Notice
of the expiry of the conversion privileges of the Debentures shall be given
by
or on behalf of the Trust, not more than 60 days and not less than 30 days
prior
to the date fixed for the Time of Expiry, in the manner provided in Section
14.2.
33
If
the redemption of any Debenture called for redemption by the Trust is not made
or the payment of the purchase price of any Debenture which has been tendered
in
acceptance of an offer by the Trust to purchase Debentures for cancellation
is
not made, in the case of a redemption upon due surrender of such Debenture
or in
the case of a purchase on the date on which such purchase is required to be
made, as the case may be, then, provided the Time of Expiry has not passed,
the
right to convert such Debentures shall revive and continue as if such Debenture
had not been called for redemption or tendered in acceptance of the Trust's
offer, respectively.
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(a)
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The
holder of a Debenture desiring to convert such Debenture in whole
or in
part into Trust Units shall surrender such Debenture to the Debenture
Trustee at either of its principal offices in the City of Calgary
or the
City of Toronto together with a conversion notice in the form attached
hereto as Schedule D
or any other written notice in a form satisfactory to the
Debenture
Trustee, in either case duly executed by the holder or his executors
or
administrators or other legal representatives or his or their attorney
duly appointed by an instrument in writing in form and executed in
a
manner satisfactory to the Debenture Trustee, exercising his right
to
convert such Debenture in accordance with the provisions of this
Article.
Thereupon such Debentureholder or, subject to payment of all applicable
stamp or security transfer taxes or other governmental charges and
compliance with all reasonable requirements of the Debenture Trustee,
his
nominee(s) or assignee(s) shall be entitled to be entered in the
books of
the Trust as at the Date of Conversion (or such later date as is
specified
in Section 6.4(b)) as the holder of the number of Trust Units into
which
such Debenture is convertible in accordance with the provisions of
this
Article and, as soon as practicable thereafter, the Trust shall deliver
to
such Debentureholder or, subject as aforesaid, his nominee(s) or
assignee(s), a certificate or certificates for such Trust Units and
make
or cause to be made any payment of interest to which such holder
is
entitled in accordance with Section 6.4(e) hereof.
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(b)
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For
the purposes of this Article, a Debenture shall be deemed to be
surrendered for conversion on the date (herein called the "Date of Conversion") on
which it is so surrendered in accordance with the provisions of this
Article and, in the case of a Debenture so surrendered by post or
other
means of transmission, on the date on which it is received by the
Debenture Trustee at one of its offices specified in Section 6.4(a);
provided that if a Debenture is surrendered for conversion on a day
on
which the register of Trust Units is closed, the person or persons
entitled to receive Trust Units shall become the holder or holders
of
record of such Trust Units as at the date on which such register
is next
reopened.
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(c)
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Any
part, being $1,000 or an integral multiple thereof, of a Debenture
in a
denomination in excess of $1,000 may be converted as provided in
this
Article and all references in this Indenture to conversion of Debentures
shall be deemed to include conversion of such part.
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(d)
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Upon
a holder of any Debenture exercising his right of conversion in respect
of
only a part of the Debenture and surrendering such Debenture to the
Debenture Trustee in accordance with Section 6.4(a), the Debenture
Trustee shall cancel the same and shall without charge forthwith
certify
and deliver to the holder a new Debenture or Debentures in an aggregate
principal amount equal to the unconverted part of the principal amount
of
the Debenture so surrendered or, with respect to a Global Debenture,
the
Depository shall make notations on the Global Debenture of the principal
amount thereof so converted.
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(e)
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The
holder of a Debenture surrendered for conversion in accordance with
this
Section 6.4 shall be entitled (subject to any applicable restriction
on
the right to receive interest on conversion of Debentures of any
series)
to receive accrued and unpaid interest in respect thereof up to but
excluding the Date of Conversion and the Trust Units issued upon
such
conversion shall rank only in respect of distributions or dividends
declared in favour of unitholders of record on and after the Date
of
Conversion or such later date as such holder shall become the holder
of
record of such Trust Units pursuant to Section 6.4(b), from which
applicable date they will for all purposes be and be deemed to be
issued
and outstanding as fully paid and non-assessable Trust Units.
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34
The
Conversion Price in effect at any date shall be subject to adjustment from
time
to time as set forth below.
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(a)
|
If
and whenever at any time prior to the Time of Expiry the Trust shall
(i)
subdivide or redivide the outstanding Trust Units into a greater
number of
units, (ii) reduce, combine or consolidate the outstanding Trust
Units
into a smaller number of units, or (iii) issue Trust Units to the
holders
of all or substantially all of the outstanding Trust Units by way
of a
dividend or distribution (other than the issue of Trust Units to
holders
of Trust Units who have elected to receive dividends or distributions
in
the form of Trust Units in lieu of cash dividends or cash distributions
paid in the ordinary course on the Trust Units), the Conversion Price
in
effect on the effective date of such subdivision, redivision, reduction,
combination or consolidation or on the record date for such issue
of Trust
Units by way of a dividend or distribution, as the case may be, shall
in
the case of any of the events referred to in (i) and (iii) above
be
decreased in proportion to the number of outstanding Trust Units
resulting
from such subdivision, redivision or dividend, or shall, in the case
of
any of the events referred to in (ii) above, be increased in proportion
to
the number of outstanding Trust Units resulting from such reduction,
combination or consolidation. Such adjustment shall be made successively
whenever any event referred to in this Section 6.5(a) shall occur.
Any
such issue of Trust Units by way of a dividend or distribution shall
be
deemed to have been made on the record date for the dividend or
distribution for the purpose of calculating the number of outstanding
Trust Units under subsections (b) and (c) of this Section 6.5.
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(b)
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If
and whenever at any time prior to the Time of Expiry the Trust shall
fix a
record date for the issuance of options, rights or warrants to all
or
substantially all the holders of its outstanding Trust Units entitling
them, for a period expiring not more than 45 days after such record
date,
to subscribe for or purchase Trust Units (or securities convertible
into
Trust Units) at a price per unit (or having a conversion or exchange
price
per unit) less than 95% of the Current Market Price of a Trust Unit
on
such record date, the Conversion Price shall be adjusted immediately
after
such record date so that it shall equal the price determined by
multiplying the Conversion Price in effect on such record date by
a
fraction, of which the numerator shall be the total number of Trust
Units
outstanding on such record date plus a number of Trust Units equal
to the
quotient obtained by dividing the aggregate price of the total number
of
additional Trust Units offered for subscription or purchase (or the
aggregate conversion or exchange price of the convertible securities
so
offered) by such Current Market Price per Trust Unit, and of which
the
denominator shall be the total number of Trust Units outstanding
on such
record date plus the total number of additional Trust Units offered
for
subscription or purchase (or into which the convertible securities
so
offered are convertible). Such adjustment shall be made successively
whenever such a record date is fixed. To the extent that any such
options,
rights or warrants are not so issued or any such options, rights
or
warrants are not exercised prior to the expiration thereof, the Conversion
Price shall be re-adjusted to the Conversion Price which would then
be in
effect if such record date had not been fixed or to the Conversion
Price
which would then be in effect if only the number of Trust Units (or
securities convertible into Trust Units) actually issued upon the
exercise
of such options, rights or warrants were included in such fraction,
as the
case may be.
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(c)
|
If
and whenever at any time prior to the Time of Expiry the Trust shall
fix a
record date for the making of a distribution to all or substantially
all
the holders of its outstanding Trust Units of (i) units of any class
other
than Trust Units and other than units distributed to holders of Trust
Units who have elected to receive dividends or distributions in the
form
of such units in lieu of dividends or distributions paid in the ordinary
course, (ii) rights, options or warrants (excluding rights, options
or
warrants entitling the holders thereof as at a specified date to
subscribe
for or purchase Trust Units or securities convertible into Trust
Units for
a period of not more than 45 days after such date), (iii) evidences
of its
indebtedness, or (iv) assets (excluding dividends or distributions
paid in
the ordinary course) then, in each such case, the Conversion Price
shall
be adjusted immediately after such record date so that it shall equal
the
price determined by multiplying the Conversion Price in effect on
such
record date by a fraction, of which the numerator shall be the total
number of Trust Units outstanding on such record date multiplied
by the
Current Market Price per Trust Unit on such record date, less the
fair
market value (as determined by the directors of AEI, on behalf of
the
Trust, with the approval of the Debenture Trustee, which determination
shall be conclusive) of such units, rights, options, warrants, evidences
of indebtedness or assets so distributed, and of which the
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35
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|
denominator
shall be the total number of Trust Units outstanding on such record
date
multiplied by such Current Market Price per Trust Unit. Such adjustment
shall be made successively whenever such a record date is fixed.
To the
extent that such distribution is not so made, the Conversion Price
shall
be reΒadjusted to the Conversion Price which would then be in effect
if such record date had not been fixed or to the Conversion Price
which
would then be in effect if only such units, rights, options, warrants,
evidences of indebtedness or assets actually distributed were included
in
such fraction, as the case may be. In clause (iv) of this subsection
(c)
the term "dividends or distributions paid in the ordinary course"
shall
include the value of any securities or other property or assets
distributed in lieu of cash dividends or distributions paid in the
ordinary course at the option of unitholders.
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(d)
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If
and whenever at any time prior to the Time of Expiry, there is a
reclassification of the Trust Units or a capital reorganization of
the
Trust other than as described in Section 6.5(a) or a consolidation,
amalgamation, arrangement or merger of the Trust with or into any
other
person or other entity; or a sale or conveyance of the assets of
the Trust
as an entirety or substantially as an entirety to any other person
or
other entity or a liquidation, dissolution or winding-up of the Trust,
any
holder of a Debenture who has not exercised its right of conversion
prior
to the effective date of such reclassification, capital reorganization,
consolidation, amalgamation, arrangement, merger, sale, conveyance,
liquidation, dissolution or winding-up, upon the exercise of such
right
thereafter, shall be entitled to receive and shall accept, in lieu
of the
number of Trust Units then sought to be acquired by it, the number
of
trust units, shares or other securities or assets of the Trust or
of the
person or other entity resulting from such reclassification, capital
reorganization, consolidation, amalgamation, arrangement or merger,
or to
which such sale or conveyance may be made or which holders of Trust
Units
receive pursuant to such liquidation, dissolution or winding-up,
as the
case may be, that such holder of a Debenture would have been entitled
to
receive on such reclassification, capital reorganization, consolidation,
amalgamation, arrangement, merger, sale, conveyance, liquidation,
dissolution or winding-up, if, on the record date or the effective
date
thereof, as the case may be, the holder had been the registered holder
of
the number of Trust Units sought to be acquired by it and to which
it was
entitled to acquire upon the exercise of the conversion right. If
determined appropriate by the directors of AEI, on behalf of the
Trust, to
give effect to or to evidence the provisions of this Section 6.5(d),
the
Trust, its successor, or such purchasing person or other entity,
as the
case may be, shall, prior to or contemporaneously with any such
reclassification, capital reorganization, consolidation, amalgamation,
arrangement, merger, sale or conveyance or liquidation, dissolution
or
winding-up, enter into an indenture which shall provide, to the extent
possible, for the application of the provisions set forth in this
Indenture with respect to the rights and interests thereafter of
the
holder of Debentures to the end that the provisions set forth in
this
Indenture shall thereafter correspondingly be made applicable, as
nearly
as may reasonably be, with respect to any trust units, shares or
other
securities or property to which a holder of Debentures is entitled
on the
exercise of its conversion rights thereafter. Any indenture entered
into
between the Trust and the Debenture Trustee pursuant to the provisions
of
this Section 6.5(d) shall be a supplemental indenture entered into
pursuant to the provisions of Article 16. Any indenture entered into
between the Trust, any successor to the Trust or such purchasing
person or
other entity and the Debenture Trustee shall provide for adjustments
which
shall be as nearly equivalent as may be practicable to the adjustments
provided in this Section 6.5 and which shall apply to successive
reclassifications, capital reorganizations, consolidations, amalgamations,
arrangements, mergers, sales or conveyances or to a liquidation,
dissolution or winding-up.
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(e)
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In
any case in which this Section 6.5 shall require
that an adjustment shall become effective immediately after a record
date
for an event referred to herein, the Trust may defer, until the occurrence
of such event, issuing to the holder of any Debenture converted after
such
record date and before the occurrence of such event the additional
Trust
Units issuable upon such conversion by reason of the adjustment required
by such event; provided, however, that the Trust shall deliver to
such
holder an appropriate instrument evidencing such holder's right to
receive
such additional Trust Units upon the occurrence of the event requiring
such adjustment and the right to receive any distributions made on
such
additional Trust Units declared in favour of holders of record of
Trust
Units on and after the Date of Conversion or such later date as such
holder would, but for the provisions of this Section 6.5(e), have
become
the holder of record of such additional Trust Units pursuant to Section
6.4(b).
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36
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(f)
|
The
adjustments provided for in this Section 6.5 are cumulative and shall
apply to successive subdivisions, redivisions, reductions, combinations,
consolidations, distributions, issues or other events resulting in
any
adjustment under the provisions of this Section, provided that,
notwithstanding any other provision of this Section, no adjustment
of the
Conversion Price shall be required unless such adjustment would require
an
increase or decrease of at least 1% in the Conversion Price then
in
effect; provided however, that any adjustments which by reason of
this
Section 6.5(f) are not required to be made shall be carried forward
and
taken into account in any subsequent adjustment.
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(g)
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For
the purpose of calculating the number of Trust Units outstanding,
Trust
Units owned by or for the benefit of the Trust shall not be counted.
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(h)
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In
the event of any question arising with respect to the adjustments
provided
in this Section 6.5, such question shall be conclusively determined
by a
firm of chartered accountants appointed by the Trust and acceptable
to the
Debenture Trustee (who may be the auditors of the Trust); such accountants
shall have access to all necessary records of the Trust and such
determination shall be binding upon the Trust, the Debenture Trustee,
and
the Debentureholders.
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(i)
|
In
case the Trust shall take any action affecting the Trust Units other
than
action described in this Section 6.5, which in
the
opinion of the directors of AEI, on behalf of the Trust, would materially
affect the rights of Debentureholders, the Conversion Price shall
be
adjusted in such manner and at such time, by action of the directors
of
AEI, on behalf of the Trust, subject to the prior written consent
of the
Toronto Stock Exchange or such other exchange on which the Debentures
are
then listed, as the directors of AEI, on behalf of the Trust, in
their
sole discretion may determine to be equitable in the circumstances.
Failure of the directors to make such an adjustment shall be conclusive
evidence that they have determined that it is equitable to make no
adjustment in the circumstances.
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(j)
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Subject
to the prior written consent of the Toronto Stock Exchange or such
other
exchange on which the Debentures are then listed, no adjustment in
the
Conversion Price shall be made in respect of any event described
in
Sections 6.5(a), 6.5(b) or 6.5(c) other than the events described
in
6.5(a)(i) or 6.5(a)(ii) if the holders of the Debentures are entitled
to
participate in such event on the same terms mutatis mutandis
as if
they had converted their Debentures prior to the effective date or
record
date, as the case may be, of such event.
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(k)
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Except
as stated above in this Section 6.5, no adjustment will be made in
the
Conversion Price for any Debentures as a result of the issuance of
Trust
Units at less than the Current Market Price for such Trust Units
on the
date of issuance or the then applicable Conversion Price.
|
The
Trust shall not be required to issue fractional Trust Units upon the conversion
of Debentures pursuant to this Article. If more than one Debenture shall be
surrendered for conversion at one time by the same holder, the number of whole
Trust Units issuable upon conversion thereof shall be computed on the basis
of
the aggregate principal amount of such Debentures to be converted. If any
fractional interest in a Trust Unit would, except for the provisions of this
Section, be deliverable upon the conversion of any principal amount of
Debentures, the Trust shall, in lieu of delivering any certificate representing
such fractional interest, make a cash payment to the holder of such Debenture
of
an amount equal to the fractional interest which would have been issuable
multiplied by the Current Market Price.
The
Trust covenants with the Debenture Trustee that it will at all times reserve
and
keep available out of its authorized Trust Units, solely for the purpose of
issue upon conversion of Debentures as in this Article provided, and
conditionally allot to Debentureholders who may exercise their conversion rights
hereunder, such number of Trust Units as shall then be issuable upon the
conversion of all outstanding Debentures. The Trust
37
covenants
with the Debenture Trustee that all Trust Units which shall be so issuable
shall
be duly and validly issued as fully paid and non-assessable.
Subject
to the provisions of Section 6.4 as to Debentures converted in part, all
Debentures converted in whole or in part under the provisions of this Article
shall be delivered in accordance with Section 6.4(a) to and cancelled by
the Debenture Trustee and no Debenture shall be issued in substitution
therefor.
The
Trust shall from time to time immediately after the occurrence of any event
which requires an adjustment or readjustment as provided in Section 6.5, deliver
an Officer's Certificate to the Debenture Trustee specifying the nature of
the
event requiring the same and the amount of the adjustment necessitated thereby
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based, which certificate and the amount of the
adjustment specified therein shall be verified by an opinion of a firm of
chartered accountants appointed by the Trust and acceptable to the Debenture
Trustee (who may be the auditors of the Trust) and shall be conclusive and
binding on all parties in interest. When so approved, the Trust shall, except
in
respect of any subdivision, redivision, reduction, combination or consolidation
of the Trust Units, forthwith give notice to the Debentureholders in the manner
provided in Section 14.2 specifying the event requiring such adjustment or
readjustment and the results thereof, including the resulting Conversion Price;
provided that, if the Trust has given notice otherwise than under this Section
6.9 covering all the relevant facts in respect of such event and if the
Debenture Trustee approves, no such notice need be given under this Section
6.9.
The
Trust covenants with the Debenture Trustee that so long as any Debenture remains
outstanding, it will give notice to the Debenture Trustee, and to the
Debentureholders in the manner provided in Section 14.2, of its intention to
fix
a record date for any event referred to in Section 6.5(a), (b) or (c) (other
than a subdivision, redivision, reduction, combination or consolidation of
its
Trust Units) which may give rise to an adjustment in the Conversion Price,
and,
in each case, such notice shall specify the particulars of such event and the
record date and the effective date for such event; provided that the Trust
shall
only be required to specify in such notice such particulars of such event as
shall have been fixed and determined on the date on which such notice is given.
Such notice shall be given not less than fourteen (14) days, in each case,
prior
to such applicable record date.
Subject
to Section 15.3, the Debenture Trustee:
|
(a)
|
shall
not at any time be under any duty or responsibility to any Debentureholder
to determine whether any facts exist which may require any adjustment
in
the Conversion Price, or with respect to the nature or extent of
any such
adjustment when made, or with respect to the method employed in making
the
same;
|
|
(b)
|
shall
not be accountable with respect to the validity or value (or the
kind or
amount) of any Trust Units or of any units, shares or other securities
or
property which may at any time be issued or delivered upon the conversion
of any Debenture; and
|
|
(c)
|
shall
not be responsible for any failure of the Trust to make any cash
payment
or to issue, transfer or deliver Trust Units, units or share certificates
upon the surrender of any Debenture for the purpose of conversion,
or to
comply with any of the covenants contained in this Article.
|
Each
certificate representing Trust Units issued upon conversion of Debentures
pursuant to this Article 6 bearing the U.S. Legend set forth in Section 2.14,
as
well as all certificates issued in exchange or in
38
substitution
for the foregoing securities, shall also bear the U.S. Legend set forth in
Section 2.14; provided that if the Trust Units are being sold outside the United
States in accordance with Rule 904 of Regulation S, and provided that the Trust
is a "foreign issuer" within the meaning of Regulation S at the time of sale,
the U.S. Legend may be removed by providing a declaration to the Debenture
Trustee, as registrar and transfer agent for the Trust Units, as set forth
in
Schedule E hereto (or as
the Trust may prescribe from time to time); and provided further that, if any
such securities are being sold within the United States in accordance with
Rule
144 under the 1933 Act, the U.S. Legend may be removed by delivery to the
Debenture Trustee, as registrar and transfer agent for the Trust Units, of
an
opinion of counsel, of recognized standing reasonably satisfactory to the Trust,
that the U.S. Legend is no longer required under applicable requirements of
the
1933 Act or state securities laws. Provided that the Debenture Trustee obtains
confirmation from the Trust that such counsel is satisfactory to it, it shall
be
entitled to rely on such opinion of counsel without further inquiry.
ARTICLE 7
The
Trust hereby covenants and agrees with the Debenture Trustee for the benefit
of
the Debenture Trustee and the Debentureholders, that so long as any Debentures
remain outstanding:
The
Trust will duly and punctually pay or cause to be paid to every Debentureholder
the principal of and interest accrued on the Debentures of which it is the
holder on the dates, at the places and in the manner mentioned herein and in
the
Debentures.
The
Trust will pay the Debenture Trustee reasonable remuneration for its services
as
Debenture Trustee hereunder and will repay to the Debenture Trustee on demand
all monies which shall have been paid by the Debenture Trustee in connection
with the execution of the trusts hereby created and such monies including the
Debenture Trustee's remuneration, shall be payable out of any funds coming
into
the possession of the Debenture Trustee in priority to payment of any principal
of the Debentures or interest thereon. The said remuneration shall continue
to
be payable until the trusts hereof be finally wound up and whether or not the
trusts of this Indenture shall be in the course of administration by or under
the direction of a court of competent jurisdiction.
The
Trust shall notify the Debenture Trustee immediately upon obtaining knowledge
of
any Event of Default hereunder.
Subject
to the express provisions hereof, the Trust will carry on and conduct its
activities, and cause its Subsidiaries to carry on and conduct their businesses,
in a proper, efficient and business-like manner and in accordance with good
business practices; and, subject to the express provisions hereof, it will
do or
cause to be done all things necessary to preserve and keep in full force and
effect its and its Subsidiaries respective existences and rights.
|
7.5
|
The
Trust will keep or cause to be kept proper books of record and account, in
which
full and correct entries shall be made of all financial transactions and the
assets and business of the Trust in accordance with generally accepted
accounting principles.
39
The
Trust shall deliver to the Debenture Trustee, within 120 days after the end
of
each calendar year, an Officer's Certificate as to the knowledge of such officer
of AEI who executes the Officer's Certificate of the Trust's compliance with
all
conditions and covenants in this Indenture certifying that after reasonable
investigation and inquiry, the Trust has complied with all covenants, conditions
or other requirements contained in this Indenture, the non-compliance with
which
could, with the giving of notice, lapse of time or otherwise, constitute an
Event of Default hereunder, or if such is not the case, setting forth with
reasonable particulars the circumstances of any failure to comply and steps
taken or proposed to be taken to eliminate such circumstances and remedy such
Event of Default, as the case may be.
The
Trust shall not declare or make any distribution to the holders of its issued
and outstanding Trust Units after the occurrence of an Event of Default unless
and until such default shall have been cured or waived or shall have ceased
to
exist.
The
Trust shall not issue additional debentures which are convertible at the option
of the holder into Trust Units ("convertible debentures") of
equal ranking to the Initial Debentures if the principal amount of all issued
and outstanding convertible debentures of the Trust would exceed 25% of the
Total Market Capitalization of the Trust immediately after the issuance of
such
additional convertible debentures.
If
the Trust shall fail to perform any of its covenants contained in this
Indenture, the Debenture Trustee may notify the Debentureholders of such failure
on the part of the Trust or may itself perform any of the covenants capable
of
being performed by it, but shall be under no obligation to do so or to notify
the Debentureholders. All sums so expended or advanced by the Debenture Trustee
in such performance shall be repayable as provided in Section 7.2. No such
performance, expenditure or advance by the Debenture Trustee shall be deemed
to
relieve the Trust of any default hereunder.
ARTICLE 8
Each
of the following events constitutes, and is herein sometimes referred to as,
an
"Event of
Default":
|
(a)
|
failure
for 10 days to pay interest on the Debentures when due;
|
|
(b)
|
failure
to pay principal or premium, if any, on the Debentures when due whether
at
maturity, upon redemption, by declaration or otherwise;
|
|
(c)
|
default
in the observance or performance of any material covenant or condition
of
this Indenture by the Trust for a period of 30 days after notice
in
writing has been given by the Debenture Trustee to the Trust specifying
such default and requiring the Trust to remedy such default;
|
|
(d)
|
if
a decree or order of a court having jurisdiction is entered adjudging
the
Trust a bankrupt or insolvent under the Bankruptcy and
Insolvency Act
(Canada) or any other bankruptcy, insolvency or analogous
laws, or
issuing sequestration or process of execution against, or against
any
substantial part of, the property of the Trust, or appointing a receiver
of, or of any substantial part of, the property of the Trust or ordering
the
|
40
|
|
winding-up
or liquidation of its affairs, and any such decree or order continues
unstayed and in effect for a period of 60 days;
|
|
(e)
|
if
the Trust institutes proceedings to be adjudicated a bankrupt or
insolvent, or consents to the institution of bankruptcy or insolvency
proceedings against it under the Bankruptcy and
Insolvency Act
(Canada) for such bankruptcy or insolvency or any other bankruptcy,
insolvency or analogous laws, or consents to the filing of any such
petition or to the appointment of a receiver of, or of any substantial
part of, the property of the Trust or makes a general assignment
for the
benefit of creditors, or admits in writing its inability to pay its
debts
generally as they become due;
|
|
(f)
|
if
a resolution is passed for the winding-up or liquidation of the Trust
except in the course of carrying out or pursuant to a transaction
in
respect of which the conditions of Section 11.1 are duly observed
and
performed; or
|
|
(g)
|
if,
after the date of this Indenture, any proceedings with respect to
the
Trust are taken with respect to a compromise or arrangement, with
respect
to creditors of the Trust generally, under the applicable legislation
of
any jurisdiction;
|
in
each and every such event the Debenture Trustee may, in its discretion, and
shall, upon receipt of a request in writing signed by the holders of not less
than 25% in principal amount of the Debentures then outstanding, subject to
the
provisions of Section 8.3, by notice in writing to the Trust declare the
principal of and interest on all Debentures then outstanding and all other
monies outstanding hereunder to be due and payable and the same shall forthwith
become immediately due and payable to the Debenture Trustee, and the Trust
shall
forthwith pay to the Debenture Trustee for the benefit of the Debentureholders
such principal, accrued and unpaid interest and interest on amounts in default
on such Debenture (and, where such a declaration is based upon a voluntary
winding-up or liquidation of the Trust, the premium, if any, on the Debentures
then outstanding which would have been payable upon the redemption thereof
by
the Trust on the date of such declaration) and all other monies outstanding
hereunder, together with subsequent interest at the rate borne by the Debentures
on such principal, interest and such other monies from the date of such
declaration until payment is received by the Debenture Trustee, such subsequent
interest to be payable at the times and places and in the monies mentioned
in
and according to the tenor of the Debentures. Such payment when made shall
be
deemed to have been made in discharge of the Trust's obligations hereunder
and
any monies so received by the Debenture Trustee shall be applied in the manner
provided in Section 8.6.
For
greater certainty, for the purposes of this Section 8.1, a series of Debentures
shall be in default in respect of an Event of Default if such Event of Default
relates to a default in the payment of principal, premium, if any, or interest
on the Debentures of such series in which case references to Debentures in
this
Section 8.1 refer to Debentures of that particular series.
For
purposes of this Article 8, where the Event of Default refers to an Event of
Default with respect to a particular series of Debentures as described in this
Section 8.1, then this Article 8 shall apply mutatis mutandis to the
Debentures of such series and references in this Article 8 to the Debentures
shall mean Debentures of the particular series and references to the
Debentureholders shall refer to the Debentureholders of the particular series,
as applicable, unless the context otherwise requires.
If
an Event of Default shall occur and be continuing the Debenture Trustee shall,
within 30 days after it receives written notice of the occurrence of such Event
of Default, give notice of such Event of Default to the Debentureholders in
the
manner provided in Section 14.2, provided that notwithstanding the
foregoing, unless the Debenture Trustee shall have been requested to do so
by
the holders of at least 25% of the principal amount of the Debentures then
outstanding, the Debenture Trustee shall not be required to give such notice
if
the Debenture Trustee in good faith shall have determined that the withholding
of such notice is in the best interests of the Debentureholders and shall have
so advised the Trust in writing.
41
Upon
the happening of any Event of Default hereunder:
|
(a)
|
the
holders of the Debentures shall have the power (in addition to the
powers
exercisable by Extraordinary Resolution as hereinafter provided)
by
requisition in writing by the holders of more than 50% of the principal
amount of Debentures then outstanding, to instruct the Debenture
Trustee
to waive any Event of Default and to cancel any declaration made
by the
Debenture Trustee pursuant to Section 8.1 and the Debenture Trustee
shall
thereupon waive the Event of Default and cancel such declaration,
or
either, upon such terms and conditions as shall be prescribed in
such
requisition; provided that notwithstanding the foregoing if the Event
of
Default has occurred by reason of the non-observance or non-performance
by
the Trust of any covenant applicable only to one or more series of
Debentures, then the holders of more than 50% of the principal amount
of
the outstanding Debentures of that series shall be entitled to exercise
the foregoing power and the Debenture Trustee shall so act and it
shall
not be necessary to obtain a waiver from the holders of any other
series
of Debentures; and
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|
(b)
|
the
Debenture Trustee, so long as it has not become bound to declare
the
principal and interest on the Debentures then outstanding to be due
and
payable, or to obtain or enforce payment of the same, shall have
power to
waive any Event of Default if, in the Debenture Trustee's opinion,
the
same shall have been cured or adequate satisfaction made therefor,
and in
such event to cancel any such declaration theretofore made by the
Debenture Trustee in the exercise of its discretion, upon such terms
and
conditions as the Debenture Trustee may deem advisable.
|
No
such act or omission either of the Debenture Trustee or of the Debentureholders
shall extend to or be taken in any manner whatsoever to affect any subsequent
Event of Default or the rights resulting therefrom.
Subject
to the provisions of Section 8.3 and to the provisions of any Extraordinary
Resolution that may be passed by the Debentureholders, if the Trust shall fail
to pay to the Debenture Trustee, forthwith after the same shall have been
declared to be due and payable under Section 8.1, the principal of and premium
(if any) and interest on all Debentures then outstanding, together with any
other amounts due hereunder, the Debenture Trustee may in its discretion and
shall upon receipt of a request in writing signed by the holders of not less
than 25% in principal amount of the Debentures then outstanding and upon being
funded and indemnified to its reasonable satisfaction against all costs,
expenses and liabilities to be incurred, proceed in its name as trustee
hereunder to obtain or enforce payment of such principal of and premium (if
any)
and interest on all the Debentures then outstanding together with any other
amounts due hereunder by such proceedings authorized by this Indenture or by
law
or equity as the Debenture Trustee in such request shall have been directed
to
take, or if such request contains no such direction, or if the Debenture Trustee
shall act without such request, then by such proceedings authorized by this
Indenture or by suit at law or in equity as the Debenture Trustee shall deem
expedient.
The
Debenture Trustee shall be entitled and empowered, either in its own name or
as
Debenture Trustee of an express trust, or as attorney-in-fact for the holders
of
the Debentures, or in any one or more of such capacities, to file such proof
of
debt, amendment of proof of debt, claim, petition or other document as may
be
necessary or advisable in order to have the claims of the Debenture Trustee
and
of the holders of the Debentures allowed in any insolvency, bankruptcy,
liquidation or other judicial proceedings relative to the Trust or its creditors
or relative to or affecting its property. The Debenture Trustee is hereby
irrevocably appointed (and the successive respective holders of the Debentures
by taking and holding the same shall be conclusively deemed to have so appointed
the Debenture Trustee) the true and lawful attorney-in-fact of the respective
holders of the Debentures with authority to make and file in the respective
names of the holders of the Debentures or on behalf of the holders of the
Debentures as a class, subject to deduction from any such claims of the amounts
of any claims filed by any of the holders of the Debentures themselves, any
proof of debt, amendment of proof of debt, claim, petition or other document
in
any such proceedings and to receive payment of any sums becoming distributable
on account thereof, and to execute any such other papers and documents and
to do
and perform any and all such acts and things for and on behalf of such holders
of the Debentures, as may be necessary or advisable in the opinion of the
Debenture Trustee, in order to have the respective claims of the Debenture
Trustee and of the holders of the Debentures against
42
the
Trust or its property allowed in any such proceeding, and to receive payment
of
or on account of such claims; provided, however, that subject to Section 8.3,
nothing contained in this Indenture shall be deemed to give to the Debenture
Trustee, unless so authorized by Extraordinary Resolution, any right to accept
or consent to any plan of reorganization or otherwise by action of any character
in such proceeding to waive or change in any way any right of any
Debentureholder.
The
Debenture Trustee shall also have the power at any time and from time to time
to
institute and to maintain such suits and proceedings as it may be advised shall
be necessary or advisable to preserve and protect its interests and the
interests of the Debentureholders.
All
rights of action hereunder may be enforced by the Debenture Trustee without
the
possession of any of the Debentures or the production thereof on the trial
or
other proceedings relating thereto. Any such suit or proceeding instituted
by
the Debenture Trustee shall be brought in the name of the Debenture Trustee
as
trustee of an express trust, and any recovery of judgment shall be for the
rateable benefit of the holders of the Debentures subject to the provisions
of
this Indenture. In any proceeding brought by the Debenture Trustee (and also
any
proceeding in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture, to which
the
Debenture Trustee shall be a party) the Debenture Trustee shall be held to
represent all the holders of the Debentures, and it shall not be necessary
to
make any holders of the Debentures parties to any such proceeding.
No
holder of any Debenture shall have any right to institute any action, suit
or
proceeding at law or in equity for the purpose of enforcing payment of the
principal of or interest on the Debentures or for the execution of any trust
or
power hereunder or for the appointment of a liquidator or receiver or for a
receiving order under the Bankruptcy and Insolvency
Act
(Canada) or to have the Trust wound up or to file or prove a claim in
any
liquidation or bankruptcy proceeding or for any other remedy hereunder, unless:
(a) such holder shall previously have given to the Debenture Trustee written
notice of the happening of an Event of Default hereunder; and (b) the
Debentureholders by Extraordinary Resolution or by written instrument signed
by
the holders of at least 25% in principal amount of the Debentures then
outstanding shall have made a request to the Debenture Trustee and the Debenture
Trustee shall have been afforded reasonable opportunity either itself to proceed
to exercise the powers hereinbefore granted or to institute an action, suit
or
proceeding in its name for such purpose; and (c) the Debentureholders or any
of
them shall have furnished to the Debenture Trustee, when so requested by the
Debenture Trustee, sufficient funds and security and indemnity satisfactory
to
it against the costs, expenses and liabilities to be incurred therein or
thereby; and (d) the Debenture Trustee shall have failed to act within a
reasonable time after such notification, request and offer of indemnity and
such
notification, request and offer of indemnity are hereby declared in every such
case, at the option of the Debenture Trustee, to be conditions precedent to
any
such proceeding or for any other remedy hereunder by or on behalf of the holder
of any Debentures.
|
(a)
|
Except
as herein otherwise expressly provided, any monies received by the
Debenture Trustee from the Trust pursuant to the foregoing provisions
of
this Article 8, or as a result of legal or other proceedings or from
any
trustee in bankruptcy or liquidator of the Trust, shall be applied,
together with any other monies in the hands of the Debenture Trustee
available for such purpose, as follows:
|
|
|
(i)
|
first,
in payment or in reimbursement to the Debenture Trustee of its
compensation, costs, charges, expenses, borrowings, advances or other
monies furnished or provided by or at the instance of the Debenture
Trustee in or about the execution of its trusts under, or otherwise
in
relation to, this Indenture, with interest thereon as herein provided;
|
|
|
(ii)
|
second,
but subject as hereinafter in this Section 8.6 provided, in payment,
rateably and proportionately to the holders of Debentures, of the
principal of and premium (if any) and accrued and unpaid interest
and
interest on amounts in default on the Debentures which shall then
be
outstanding in the priority of principal first and then premium and
then
accrued and unpaid interest and interest on amounts in default unless
otherwise directed by Extraordinary Resolution and in
|
43
|
|
that
case in such order or priority as between principal, premium (if
any) and
interest as may be directed by such resolution; and
|
|
|
(iii)
|
third,
in payment of the surplus, if any, of such monies to the Trust or
its
assigns;
|
provided,
however, that no payment shall be made pursuant to clause (ii) above in respect
of the principal, premium or interest on any Debenture held, directly or
indirectly, by or for the benefit of the Trust or any Subsidiary (other than
any
Debenture pledged for value and in good faith to a person other than the Trust
or any Subsidiary but only to the extent of such person's interest therein)
except subject to the prior payment in full of the principal, premium (if any)
and interest (if any) on all Debentures which are not so held.
|
(b)
|
The
Debenture Trustee shall not be bound to apply or make any partial
or
interim payment of any monies coming into its hands if the amount
so
received by it, after reserving thereout such amount as the Debenture
Trustee may think necessary to provide for the payments mentioned
in
Section 8.6(a), is insufficient to make a distribution of at least
2% of
the aggregate principal amount of the outstanding Debentures, but it may
retain the money so received by it and invest or deposit the same
as
provided in Section 15.9 until the money or the investments representing
the same, with the income derived therefrom, together with any other
monies for the time being under its control shall be sufficient for
the
said purpose or until it shall consider it advisable to apply the
same in
the manner hereinbefore set forth. The foregoing shall, however,
not apply
to a final payment in distribution hereunder.
|
Not
less than 15 days notice shall be given in the manner provided in Section 14.2
by the Debenture Trustee to the Debentureholders of any payment to be made
under
this Article 8. Such notice shall state the time when and place where such
payment is to be made and also the liability under this Indenture to which
it is
to be applied. After the day so fixed, unless payment shall have been duly
demanded and have been refused, the Debentureholders will be entitled to
interest only on the balance (if any) of the principal monies, premium (if
any)
and interest (if any) due to them, respectively, on the Debentures, after
deduction of the respective amounts payable in respect thereof on the day so
fixed.
The
Debenture Trustee shall have the right to demand production of the Debentures
in
respect of which any payment of principal, interest or premium required by
this
Article 8 is made and may cause to be endorsed on the same a memorandum of
the
amount so paid and the date of payment, but the Debenture Trustee may, in its
discretion, dispense with such production and endorsement, upon such indemnity
being given to it and to the Trust as the Debenture Trustee shall deem
sufficient.
No
remedy herein conferred upon or reserved to the Debenture Trustee, or upon
or to
the holders of Debentures is intended to be exclusive of any other remedy,
but
each and every such remedy shall be cumulative and shall be in addition to
every
other remedy given hereunder or now existing or hereafter to exist by law or
by
equity.
The
Trust covenants and agrees with the Debenture Trustee that, in case of any
judicial or other proceedings to enforce the rights of the Debentureholders,
judgment may be rendered against it in favour of the Debentureholders or in
favour of the Debenture Trustee, as trustee for the Debentureholders, for any
amount which may remain due in respect of the Debentures and premium (if any)
and the interest thereon and any other monies owing hereunder.
44
The
Debentureholders and the Debenture Trustee hereby waive and release any right,
cause of action or remedy now or hereafter existing in any jurisdiction against
any past, present or future officer, trustee or holder of Trust Units of the
Trust or of any successor, in each case in such capacity, for the payment of
the
principal of or premium or interest on any of the Debentures or on any covenant,
agreement, representation or warranty by the Trust herein or in the Debentures
contained.
ARTICLE 9
All
Debentures shall forthwith after payment of all obligations thereunder be
delivered to the Debenture Trustee and cancelled by it. All Debentures cancelled
or required to be cancelled under this or any other provision of this Indenture
shall be destroyed by the Debenture Trustee and, if required by the Trust,
the
Debenture Trustee shall furnish to it a destruction certificate setting out
the
designating numbers of the Debentures so destroyed.
In
case the holder of any Debenture shall fail to present the same for payment
on
the date on which the principal, premium (if any) or the interest thereon or
represented thereby becomes payable either at maturity or otherwise or shall
not
accept payment on account thereof and give such receipt therefor, if any, as
the
Debenture Trustee may require:
|
(a)
|
the
Trust shall be entitled to pay or deliver to the Debenture Trustee
and
direct it to set aside; or
|
|
(b)
|
in
respect of monies or Trust Units in the hands of the Debenture Trustee
which may or should be applied to the payment of the Debentures,
the Trust
shall be entitled to direct the Debenture Trustee to set aside; or
|
|
(c)
|
if
the redemption was pursuant to notice given by the Debenture Trustee,
the
Debenture Trustee may itself set aside;
|
the
principal, premium (if any) or the interest, as the case may be, in trust to
be
paid to the holder of such Debenture upon due presentation or surrender thereof
in accordance with the provisions of this Indenture; and thereupon the
principal, premium (if any) or the interest payable on or represented by each
Debenture in respect whereof such monies or Trust Units, if applicable, have
been set aside shall be deemed to have been paid and the holder thereof shall
thereafter have no right in respect thereof except that of receiving delivery
and payment of the monies or Trust Units, if applicable, so set aside by the
Debenture Trustee upon due presentation and surrender thereof, subject always
to
the provisions of Section 9.3.
Subject
to applicable law, any monies or Trust Units, if applicable, set aside under
Section 9.2 and not claimed by and paid to holders of Debentures as provided
in
Section 9.2 within six years after the date of such setting aside shall be
repaid and delivered to the Trust by the Debenture Trustee and thereupon the
Debenture Trustee shall be released from all further liability with respect
to
such monies or Trust Units, if applicable, and thereafter the holders of the
Debentures in respect of which such monies or Trust Units, if applicable, were
so repaid to the Trust shall have no rights in respect thereof except to obtain
payment and delivery of the monies or Trust Units, if applicable, from the
Trust
subject to any limitation provided by the laws of the Province of Alberta.
Notwithstanding the foregoing, the Debenture Trustee will pay any remaining
funds prior to the expiry of six years after the setting aside described in
Section 9.2 to the Trust upon receipt from the Trust, or one of its
Subsidiaries, of an uncontested letter of credit from a Canadian chartered
bank
in an amount equal to or in excess of the amount of the remaining funds. If
the
remaining funds are paid to the Trust prior to the expiry of six years after
such setting
45
aside,
the Trust shall reimburse the Debenture Trustee for any amounts so set aside
which are required to be paid by the Debenture Trustee to a holder of a
Debenture after the date of such payment of the remaining funds to the Trust
but
prior to six years after such setting aside.
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9.4
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The
Debenture Trustee shall at the written request of the Trust release and
discharge this Indenture and execute and deliver such instruments as it shall
be
advised by Counsel are requisite for that purpose and to release the Trust
from
its covenants herein contained (other than the provisions relating to the
indemnification of the Debenture Trustee), upon proof being given to the
reasonable satisfaction of the Debenture Trustee that the principal and premium
(if any) of and interest (including interest on amounts in default, if any),
on
all the Debentures and all other monies payable hereunder have been paid or
satisfied or that all the Debentures having matured or having been duly called
for redemption, payment of the principal of and interest (including interest
on
amounts in default, if any) on such Debentures and of all other monies payable
hereunder has been duly and effectually provided for in accordance with the
provisions hereof.
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9.5
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(a)
|
The
Trust shall be deemed to have fully paid, satisfied and discharged
all of
the outstanding Debentures of any series and the Debenture Trustee,
at the
expense of the Trust, shall execute and deliver proper instruments
acknowledging the full payment, satisfaction and discharge of such
Debentures, when, with respect to all of the outstanding Debentures
or all
of the outstanding Debentures of any series, as applicable, either:
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(i)
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the
Trust has deposited or caused to be deposited with the Debenture
Trustee
as trust funds or property in trust for the purpose of making payment
on
such Debentures, an amount in money or Trust Units, if applicable,
sufficient to pay, satisfy and discharge the entire amount of principal,
premium, if any, and interest, if any, to maturity or any repayment
date
or Redemption Dates, as the case may be, of such Debentures; or
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(ii)
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the
Trust has deposited or caused to be deposited with the Debenture
Trustee
as trust property in trust for the purpose of making payment on such
Debentures:
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(A)
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if
the Debentures are issued in Canadian dollars, such amount in Canadian
dollars of direct obligations of, or obligations the principal and
interest of which are guaranteed by, the Government of Canada or
Trust
Units, if applicable; or
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(B)
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if
the Debentures are issued in a currency or currency unit other than
Canadian dollars, cash in the currency or currency unit in which
the
Debentures are payable and/or such amount in such currency or currency
unit of direct obligations of, or obligations the principal and interest
of which are guaranteed by, the Government of Canada or the government
that issued the currency or currency unit in which the Debentures
are
payable or Trust Units, if applicable;
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as
will, together with the income to accrue thereon and reinvestment thereof,
be
sufficient to pay and discharge the entire amount of principal and accrued
and
unpaid interest to maturity or any repayment date, as the case may be, of all
such Debentures;
and
in either event:
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(iii)
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the
Trust has paid, caused to be paid or made provisions to the satisfaction
of the Debenture Trustee for the payment of all other sums payable
with
respect to all of such Debentures (together with all applicable expenses
of the Debenture Trustee in connection with the payment of such
Debentures); and
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46
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(iv)
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the
Trust has delivered to the Debenture Trustee an Officer's Certificate
stating that all conditions precedent herein provided relating to
the
payment, satisfaction and discharge of all such Debentures have been
complied with.
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Any
deposits with the Debenture Trustee referred to in this Section 9.5 shall be
irrevocable, subject to Section 9.6, and shall be made under the terms of an
escrow and/or trust agreement in form and substance satisfactory to the
Debenture Trustee and which provides for the due and punctual payment of the
principal of, and interest and premium, if any, on the Debentures being
satisfied.
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(b)
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Upon
the satisfaction of the conditions set forth in this Section 9.5
with
respect to all the outstanding Debentures, or all the outstanding
Debentures of any series, as applicable, the terms and conditions
of the
Debentures, including the terms and conditions with respect thereto
set
forth in this Indenture (other than those contained in Articles 2
and 4
and the provisions of Article 1 pertaining to Articles 2 and 4) shall
no
longer be binding upon or applicable to the Trust.
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(c)
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Any
funds or obligations deposited with the Debenture Trustee pursuant
to this
Section 9.5 shall be denominated in the currency or denomination
of the
Debentures in respect of which such deposit is made.
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(d)
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If
the Debenture Trustee is unable to apply any money or securities
in
accordance with this Section 9.5 by reason of any legal proceeding
or any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Trust's
obligations under this Indenture and the affected Debentures shall
be
revived and reinstated as though no money or securities had been
deposited
pursuant to this Section 9.5 until such time as the Debenture Trustee
is
permitted to apply all such money or securities in accordance with
this
Section 9.5, provided that if the Trust has made any payment in respect
of
principal, premium or interest on Debentures or, as applicable, other
amounts because of the reinstatement of its obligations, the Trust
shall
be subrogated to the rights of the holders of such Debentures to
receive
such payment from the money or securities held by the Debenture Trustee.
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Where
trust funds or trust property have been deposited pursuant to Section 9.5,
the
holders of Debentures and the Trust shall continue to have and be subject to
their respective rights, duties and obligations under Articles 2 and 4.
ARTICLE 10
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(a)
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Provided
that the Trust is not in default under this Indenture and that all
applicable regulatory approvals have been obtained (including any
required
approval of any stock exchange on which the Debentures or Trust Units
are
then listed), the Trust shall have the right, from time to time,
to make a
Trust Unit Interest Payment Election in respect of any Interest Obligation
by delivering a Trust Unit Interest Payment Election Notice to the
Debenture Trustee no later than the date required by applicable law
or the
rules of any stock exchange on which the Debentures or Trust Units
are
then listed.
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(b)
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Upon
receipt of a Trust Unit Interest Payment Election Notice, the Debenture
Trustee shall, in accordance with this Article 10 and such Trust
Unit
Interest Payment Election Notice, deliver Trust Unit Bid Requests
to the
investment banks, brokers or dealers identified by the Trust, in
its
absolute discretion, in the Trust Unit Interest Payment Election
Notice.
In connection with the Trust Unit Interest Payment Election, the
Debenture
Trustee shall have the power to: (i) accept delivery of the Trust
Units
from the Trust and process the Trust Units in accordance with the
Trust
Unit Interest Payment Election Notice; (ii) accept bids with respect
to,
and consummate sales of, such Trust Units, each as the Trust shall
direct
in its absolute discretion through the investment banks, brokers
or
dealers identified by the Trust in the Trust Unit Interest Payment
Election Notice; (iii) invest the proceeds of such sales on the direction
of the Trust in Government
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47
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Obligations
which mature prior to an applicable Interest Payment Date and use
such
proceeds to pay the Interest Obligation in respect of which the Trust
Unit
Interest Payment Election was made; and (iv) perform any other action
necessarily incidental thereto as directed by the Trust in its absolute
discretion. The Trust Unit Interest Payment Election Notice shall
direct
the Debenture Trustee to solicit and accept only, and each Trust
Unit Bid
Request shall provide that the acceptance of any bid is conditional
on the
acceptance of, sufficient bids to result in aggregate proceeds from
such
issue and sale of Trust Units which, together with the cash payments
by
the Trust in lieu of fractional Trust Units, if any, equal the Interest
Obligation on the Trust Unit Delivery Date.
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(d)
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Any
sale of Trust Units pursuant to this Article 10 may be made to one
or more
persons whose bids are solicited, but all such sales with respect
to a
particular Trust Unit Interest Payment Election shall take place
concurrently on the Trust Unit Delivery Date.
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(e)
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The
amount received by a holder of a Debenture in respect of the Interest
Obligation or the entitlement thereto will not be affected by whether
or
not the Trust elects to satisfy the Interest Obligation pursuant
to a
Trust Unit Interest Payment Election.
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(f)
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The
Debenture Trustee shall inform the Trust promptly following receipt
of any
bid or bids for Trust Units solicited pursuant to the Trust Unit
Bid
Requests. The Debenture Trustee shall accept such bid or bids as
the
Trust, in its absolute discretion, shall direct by Written Direction
of
the Trust, provided that the aggregate proceeds of all sales of Trust
Units resulting from the acceptance of such bids, together with the
amount
of any cash payment by the Trust in lieu of any fractional Trust
Units, on
the Trust Unit Delivery Date, must be equal to the related Trust
Unit
Interest Payment Election Amount in connection with any bids so accepted,
and the Trust, the Debenture Trustee (if required by the Trust in
its
absolute discretion) and the applicable bidders shall, not later
than the
Trust Unit Delivery Date, enter into Trust Unit Purchase Agreements
and
shall comply with all Applicable Securities Legislation, including
the
securities rules and regulations of any stock exchange on which the
Debentures or Trust Units are then listed. The Trust shall pay all
fees
and expenses in connection with the Trust Unit Purchase Agreements
including the fees and commissions charged by the investment banks,
brokers and dealers and the fees of the Debenture Trustee.
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(g)
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Provided
that: (i) all conditions specified in each Trust Unit Purchase Agreement
to the closing of all sales thereunder have been satisfied, other
than the
delivery of the Trust Units to be sold thereunder against payment
of the
purchase price thereof; and (ii) the purchasers under each Trust
Unit
Purchase Agreement shall be ready, willing and able to perform thereunder,
in each case on the Trust Unit Delivery Date, the Trust shall, on
the
Trust Unit Delivery Date, deliver to the Debenture Trustee the Trust
Units
to be sold on such date, an amount in cash equal to the value of
any
fractional Trust Units and an Officer's Certificate to the effect
that all
conditions precedent to such sales, including those set forth in
this
Indenture and in each Trust Unit Purchase Agreement, have been satisfied.
Upon such deliveries, the Debenture Trustee shall consummate such
sales on
such Trust Unit Delivery Date by the delivery of the Trust Units
to such
purchasers against payment to the Debenture Trustee in immediately
available funds of the purchase price therefor in an aggregate amount
equal to the Trust Unit Interest Payment Election Amount (less any
amount
attributable to any fractional Trust Units), whereupon the sole right
of a
holder of Debentures to receive such holder's portion of the Trust
Unit
Interest Payment Election Amount will be to receive same from the
Debenture Trustee out of the proceeds of such sales of Trust Units
plus
any amount received by the Debenture Trustee from the Trust attributable
to any fractional Trust Units in full satisfaction of the Interest
Obligation and the holder will have no further recourse to the Trust
in
respect of the Interest Obligation.
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48
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(h)
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The
Debenture Trustee shall, on the Trust Unit Delivery Date, use the
sale
proceeds of the Trust Units (together with any cash received from
the
Trust in lieu of any fractional Trust Units) to purchase, on the
direction
of the Trust in writing, Government Obligations which mature prior
to the
applicable Interest Payment Date and which the Debenture Trustee
is
required to hold until maturity (the "Trust Unit Proceeds
Investment") and shall, on such date, deposit the balance, if any,
of such sale proceeds in an account established by the Trust (and
which
shall be maintained by and subject to the control of the Debenture
Trustee) (the "Interest
Account") for such Debentures. The Debenture Trustee shall hold
such Trust Unit Proceeds Investment (but not income earned thereon)
under
its exclusive control in an irrevocable trust for the benefit of
the
holders of the Debentures. At least one Business Day prior to the
Interest
Payment Date, the Debenture Trustee shall deposit amounts from the
proceeds of the Trust Unit Proceeds Investment in the Interest Account
to
bring the balance of the Interest Account to the Trust Unit Interest
Payment Election Amount. On the Interest Payment Date, the Debenture
Trustee shall pay the funds held in the Interest Account to the holders
of
record of the Debentures on the Interest Payment Date (less any tax
required to be deducted, if any) and, provided that there is no Event
of
Default, shall remit amounts, if any, in respect of income earned
on the
Trust Unit Proceeds Investment or otherwise in excess of the Trust
Unit
Interest Payment Election Amount to the Trust.
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(i)
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Neither
the making of a Trust Unit Payment Election nor the consummation
of sales
of Trust Units on a Trust Unit Delivery Date shall (i) result in
the
holders of the Debentures not being entitled to receive on the applicable
Interest Payment Date cash in an aggregate amount equal to the Interest
Obligation payable on such date or (ii) entitle such holders to receive
any Trust Units in satisfaction of such Interest Obligation.
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(j)
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No
fractional Trust Units will be issued in satisfaction of interest
but in
lieu thereof the Trust will satisfy such fractional interest by a
cash
payment equal to the market price of such fractional interest (less
any
tax required to be deducted, if any).
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ARTICLE 11
Subject
to the provisions of Article 12, the Trust shall not enter into any transaction
or series of transactions whereby all or substantially all of its undertaking,
property or assets would become the property of any other person (herein called
a "Successor") whether
by way of reorganization, consolidation, amalgamation, arrangement, merger,
transfer, sale or otherwise, unless:
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(a)
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prior
to or contemporaneously with the consummation of such transaction
the
Trust and the Successor shall have executed such instruments and
done such
things as, in the opinion of Counsel, are necessary or advisable
to
establish that upon the consummation of such transaction:
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(i)
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the
Successor will have assumed all the covenants and obligations of
the Trust
under this Indenture in respect of the Debentures;
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(ii)
|
the
Debentures will be valid and binding obligations of the Successor
entitling the holders thereof, as against the Successor, to all the
rights
of Debentureholders under this Indenture; and
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(iii)
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in
the case of an entity organized otherwise than under the laws of
the
Province of Alberta, shall attorn to the jurisdiction of the courts
of the
Province of Alberta;
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(b)
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such
transaction, in the opinion of Counsel, shall be on such terms as
to
substantially preserve and not impair any of the rights and powers
of the
Debenture Trustee or of the Debentureholders hereunder; and
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(c)
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no
condition or event shall exist as to the Trust (at the time of such
transaction) or the Successor (immediately after such transaction)
and
after giving full effect thereto or immediately after the Successor
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49
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shall
become liable to pay the principal monies, premium, if any, interest
and
other monies due or which may become due hereunder, which constitutes
or
would constitute an Event of Default hereunder.
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Whenever
the conditions of Section 11.1 shall have been duly observed and performed,
any
Successor formed by or resulting from such transaction shall succeed to, and
be
substituted for, and may exercise every right and power of the Trust under
this
Indenture with the same effect as though the Successor had been named as the
Trust herein and thereafter, except in the case of a lease or other similar
disposition of property to the Successor, the Trust shall be relieved of all
obligations and covenants under this Indenture and the Debentures forthwith
upon
the Trust delivering to the Debenture Trustee an opinion of Counsel to the
effect that the conditions of Section 11.1 will have been duly observed and
performed on completion of the transaction and that the transaction shall not
result in any material adverse tax consequences to the Trust or the Successor.
The Debenture Trustee will, at the expense of the Successor, execute any
documents which it may be advised by Counsel are necessary or advisable for
effecting or evidencing such release and discharge.
ARTICLE 12
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12.1
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In
this Article:
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(a)
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"Affiliate"
and "Associate" shall
have
their respective meanings set forth in the Securities Act
(Alberta);
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(b)
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"Dissenting
Debentureholders" means a Debentureholder who does not accept an
Offer referred to in Section 12.2 and includes any assignee of the
Debenture of a Debentureholder to whom such an Offer is made, whether
or
not such assignee is recognized under this Indenture;
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(c)
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"Offer"
means an offer to
acquire outstanding Debentures where, as of the date of the offer
to
acquire, the Debentures that are subject to the offer to acquire,
together
with the Offeror's Debentures, constitute in the aggregate 20% or
more of
the outstanding principal amount of the Debentures;
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(d)
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"offer
to acquire"
includes an acceptance of an offer to sell;
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(e)
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"Offeror"
means a person,
or two or more persons acting jointly or in concert, who make an
Offer to
acquire Debentures;
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(f)
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"Offeror's
Notice" means
the notice described in Section 12.3; and
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(g)
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"Offeror's
Debentures"
means Debentures beneficially owned, or over which control or direction
is
exercised, on the date of an Offer by the Offeror, any Affiliate
or
Associate of the Offeror or any person acting jointly or in concert
with
the Offeror.
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12.2
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If
an Offer for all of the outstanding Debentures (other than Debentures held
by or
on behalf of the Offeror or an Affiliate or Associate of the Offeror) is made
and:
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(a)
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within
the time provided in the Offer for its acceptance or within 45 days
after
the date the Offer is made, whichever period is the shorter, the
Offer is
accepted by Debentureholders representing at least 90% of the outstanding
principal amount of the Debentures, other than the Offeror's Debentures;
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(b)
|
the
Offeror is bound to take up and pay for, or has taken up and paid
for the
Debentures of the Debentureholders who accepted the Offer; and
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(c)
|
the
Offeror complies with Sections 12.3 and 12.5;
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the
Offeror is entitled to acquire, and the Dissenting Debentureholders are required
to sell to the Offeror, the Debentures held by the Dissenting Debentureholder
for the same consideration per Debenture payable or paid, as the case may be,
under the Offer.
Where
an Offeror is entitled to acquire Debentures held by Dissenting Debentureholders
pursuant to Section 12.2 and the Offeror wishes to exercise such right, the
Offeror shall send by registered mail within 30 days after the date of
termination of the Offer a notice (the "Offeror's Notice") to each
Dissenting Debentureholder stating that:
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(a)
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Debentureholders
holding at least 90% of the principal amount of all outstanding
Debentures, other than Offeror's Debentures, have accepted the Offer;
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(b)
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the
Offeror is bound to take up and pay for, or has taken up and paid
for, the
Debentures of the Debentureholders who accepted the Offer;
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(c)
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Dissenting
Debentureholders must transfer their respective Debentures to the
Offeror
on the terms on which the Offeror acquired the Debentures of the
Debentureholders who accepted the Offer within 21 days after the
date of
the sending of the Offeror's Notice; and
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(d)
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Dissenting
Debentureholders must send their respective Debenture certificate(s)
to
the Debenture Trustee within 21 days after the date of the sending
of the
Offeror's Notice.
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A
Dissenting Debentureholder to whom an Offeror's Notice is sent pursuant to
Section 12.3 shall, within 21 days after the sending of the Offeror's Notice,
send his or her Debenture certificate(s) to the Debenture Trustee duly endorsed
for transfer.
Within
21 days after the Offeror sends an Offeror's Notice pursuant to Section 12.3,
the Offeror shall pay or transfer to the Debenture Trustee, or to such other
person as the Debenture Trustee may direct, the cash or other consideration
that
is payable to Dissenting Debentureholders pursuant to Section
12.2. The acquisition by the Offeror of all Debentures held by all
Dissenting Debentureholders shall be effective as of the time of such payment
or
transfer.
The
Debenture Trustee, or the person directed by the Debenture Trustee, shall hold
in trust for the Dissenting Debentureholders the cash or other consideration
they or it receives under Section 12.5. The Debenture Trustee, or such persons,
shall deposit cash in a separate account in a Canadian chartered bank, or other
body corporate, any of whose deposits are insured by the Canada Deposit
Insurance Corporation, and shall place other consideration in the custody of
a
Canadian chartered bank or such other body corporate.
Within
30 days after the date of the sending of an Offeror's Notice pursuant to Section
12.3, the Debenture Trustee, if the Offeror has complied with Section 12.5,
shall:
51
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(a)
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do
all acts and things and execute and cause to be executed all instruments
as in the Debenture Trustee's opinion may be necessary or desirable
to
cause the transfer of the Debentures of the Dissenting Debentureholders
to
the Offeror;
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(b)
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send
to each Dissenting Debentureholder who has complied with Section
12.4 the
consideration to which such Dissenting Debentureholder is entitled
under
this Article 12; and
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(c)
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send
to each Dissenting Debentureholder who has not complied with Section
12.4
a notice stating that:
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(i)
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his
or her Debentures have been transferred to the Offeror;
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(ii)
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the
Debenture Trustee or some other person designated in such notice
is
holding in trust the consideration for such Debentures; and
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(iii)
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the
Debenture Trustee, or such other person, will send the consideration
to
such Dissenting Debentureholder as soon as possible after receiving
such
Dissenting Debentureholder's Debenture certificate(s) or such other
documents as the Debenture Trustee or such other person may require
in
lieu thereof;
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and
the Debenture Trustee is hereby appointed the agent and attorney of the
Dissenting Debentureholders for the purposes of giving effect to the foregoing
provisions.
An
Offeror cannot make an Offer for Debentures unless, concurrent with the
communication of the Offer to any Debentureholder, a copy of the Offer is
provided to the Trust.
ARTICLE 13
The
Debenture Trustee or the Trust may at any time and from time to time, and the
Debenture Trustee shall, on receipt of a written request of the Trust or a
written request signed by the holders of not less than 25% of the principal
amount of the Debentures then outstanding and upon receiving funding and being
indemnified to its reasonable satisfaction by the Trust or by the
Debentureholders signing such request against the costs which may be incurred
in
connection with the calling and holding of such meeting, convene a meeting
of
the Debentureholders. In the event of the Debenture Trustee failing, within
30
days after receipt of any such request and such funding of indemnity, to give
notice convening a meeting, the Trust or such Debentureholders, as the case
may
be, may convene such meeting. Every such meeting shall be held in the City
of
Calgary or at such other place as may be approved or determined by the Debenture
Trustee.
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13.2
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(a)
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At
least 21 days notice of any meeting shall be given to the Debentureholders
in the manner provided in Section 14.2 and a copy of such notice
shall be
sent by post to the Debenture Trustee, unless the meeting has been
called
by it. Such notice shall state the time when and the place where
the
meeting is to be held and shall state briefly the general nature
of the
business to be transacted thereat and it shall not be necessary for
any
such notice to set out the terms of any resolution to be proposed
or any
of the provisions of this Article. The accidental omission to give
notice
of a meeting to any holder of Debentures shall not invalidate any
resolution passed at any such meeting. A holder may waive notice
of a
meeting either before or after the meeting.
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(b)
|
If
the business to be transacted at any meeting by Extraordinary Resolution
or otherwise, or any action to be taken or power exercised by instrument
in writing under Section 13.15, especially affects the rights of
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52
|
|
holders
of Debentures of one or more series in a manner or to an extent differing
in any material way from that in or to which the rights of holders
of
Debentures of any other series are affected (determined as provided
in
Sections 13.2(c) and (d)), then:
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(i)
|
a
reference to such fact, indicating each series of Debentures in the
opinion of the Debenture Trustee (or the Person calling the meeting)
so
especially affected (hereinafter referred to as the "especially affected
series") shall be made in the notice of such meeting, and in any
such case the meeting shall be and be deemed to be and is herein
referred
to as a "Serial
Meeting"; and
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(ii)
|
the
holders of Debentures of an especially affected series shall not
be bound
by any action taken at a Serial Meeting or by instrument in writing
under
Section 13.15 unless in addition to compliance with the other provisions
of this Article 13:
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(A)
|
at
such Serial Meeting: (I) there are Debentureholders present in person
or
by proxy and representing at least 25% in principal amount of the
Debentures then outstanding of such series, subject to the provisions
of
this Article 13 as to quorum at adjourned meetings; and (II) the
resolution is passed by the affirmative vote of the holders of more
than
50% (or in the case of an Extraordinary Resolution not less than
66 2/3%) of the principal amount of the Debentures of such series
then outstanding voted on the resolution; or
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(B)
|
in
the case of action taken or power exercised by instrument in writing
under
Section 13.15, such instrument is signed in one or more counterparts
by
the holders of not less than 66 2/3% in principal amount of the
Debentures of such series then outstanding.
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(c)
|
Subject
to Section 13.2(d), the determination as to whether any business
to be
transacted at a meeting of Debentureholders, or any action to be
taken or
power to be exercised by instrument in writing under Section 13.15,
especially affects the rights of the Debentureholders of one or more
series in a manner or to an extent differing in any material way
from that
in or to which it affects the rights of Debentureholders of any other
series (and is therefore an especially affected series) shall be
determined by an opinion of Counsel, which shall be binding on all
Debentureholders, the Debenture Trustee and the Trust for all purposes
hereof.
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(d)
|
A
proposal:
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|
|
(i)
|
to
extend the maturity of Debentures of any particular series or to
reduce
the principal amount thereof, the rate of interest or redemption
premium
thereon or to impair any conversion right thereof;
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|
(ii)
|
to
modify or terminate any covenant or agreement which by its terms
is
effective only so long as Debentures of a particular series are
outstanding; or
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|
(iii)
|
to
reduce with respect to Debentureholders of any particular series
any
percentage stated in this Section 13.2 or any of Sections 13.4, 13.12
and
13.15;
|
shall
be deemed to especially affect the rights of the Debentureholders of such series
in a manner differing in a material way from that in which it affects the rights
of holders of Debentures of any other series, whether or not a similar
extension, reduction, modification or termination is proposed with respect
to
Debentures of any or all other series.
|
13.3
|
Some
person, who need not be a Debentureholder, nominated in writing by the Debenture
Trustee shall be chairman of the meeting and if no person is so nominated,
or if
the person so nominated is not present within 15 minutes from the time fixed
for
the holding of the meeting, a majority of the Debentureholders present in person
or by proxy shall choose some person present to be chairman.
53
|
13.4
|
Subject
to the provisions of Section 13.12, at any meeting of the Debentureholders
a
quorum shall consist of Debentureholders present in person or by proxy and
representing at least 25% in principal amount of the outstanding Debentures
and,
if the meeting is a Serial Meeting, at least 25% of the Debentures then
outstanding of each especially affected series. If a quorum of the
Debentureholders shall not be present within 30 minutes from the time fixed
for
holding any meeting, the meeting, if summoned by the Debentureholders or
pursuant to a request of the Debentureholders, shall be dissolved, but in any
other case the meeting shall be adjourned to the same day in the next week
(unless such day is not a Business Day in which case it shall be adjourned
to
the next following Business Day thereafter) at the same time and place and
no
notice shall be required to be given in respect of such adjourned meeting.
At
the adjourned meeting, the Debentureholders present in person or by proxy shall,
subject to the provisions of Section 13.12, constitute a quorum and may transact
the business for which the meeting was originally convened notwithstanding
that
they may not represent 25% of the principal amount of the outstanding Debentures
or of the Debentures then outstanding of each especially affected series. Any
business may be brought before or dealt with at an adjourned meeting which
might
have been brought before or dealt with at the original meeting in accordance
with the notice calling the same. No business shall be transacted at any meeting
unless the required quorum be present at the commencement of business.
|
13.5
|
The
chairman of any meeting at which a quorum of the Debentureholders is present
may, with the consent of the holders of a majority in principal amount of the
Debentures represented thereat, adjourn any such meeting and no notice of such
adjournment need be given except such notice, if any, as the meeting may
prescribe.
|
13.6
|
Every
question submitted to a meeting shall, subject to Section 13.7, be decided
in
the first place by a majority of the votes given on a show of hands except
that
votes on Extraordinary Resolutions shall be given in the manner hereinafter
provided. At any such meeting, unless a poll is duly demanded as herein
provided, a declaration by the chairman that a resolution has been carried
or
carried unanimously or by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of the fact. The chairman
of
any meeting shall be entitled, both on a show of hands and on a poll, to vote
in
respect of the Debentures, if any, held by him.
|
13.7
|
On
every Extraordinary Resolution, and on any other question submitted to a meeting
when demanded by the chairman or by one or more Debentureholders or proxies
for
Debentureholders, a poll shall be taken in such manner and either at once or
after an adjournment as the chairman shall direct. Questions other than
Extraordinary Resolutions shall, if a poll be taken, be decided by the votes
of
the holders of a majority in principal amount of the Debentures and of each
especially affected series, if applicable, represented at the meeting and voted
on the poll.
|
13.8
|
On
a show of hands every person who is present and entitled to vote, whether as
a
Debentureholder or as proxy for one or more Debentureholders or both, shall
have
one vote. On a poll each Debentureholder present in person or represented by
a
proxy duly appointed by an instrument in writing shall be entitled to one vote
in respect of each $1,000 principal amount of Debentures of which he shall
then
be the holder. In the case of any Debenture denominated in a currency or
currency unit other than Canadian dollars, the principal amount thereof for
these purposes shall be computed in Canadian dollars on the basis of the
conversion of the principal amount thereof at the applicable spot buying rate
of
exchange for such other currency or currency unit as reported by the Bank of
Canada at the close of business on the Business Day next preceding the meeting.
Any fractional amounts resulting from such conversion shall be rounded to the
nearest $100. A proxy need not be a Debentureholder. In the case of joint
holders of a Debenture, any one of them present in person or by proxy at
the
54
meeting
may vote in the absence of the other or others but in case more than one of
them
be present in person or by proxy, they shall vote together in respect of the
Debentures of which they are joint holders.
|
13.9
|
A
Debentureholder may be present and vote at any meeting of Debentureholders
by an
authorized representative. The Trust (in case it convenes the meeting) or the
Debenture Trustee (in any other case) for the purpose of enabling the
Debentureholders to be present and vote at any meeting without producing their
Debentures, and of enabling them to be present and vote at any such meeting
by
proxy and of lodging instruments appointing such proxies at some place other
than the place where the meeting is to be held, may from time to time make
and
vary such regulations as it shall think fit providing for and governing any
or
all of the following matters:
|
(a)
|
the
form of the instrument appointing a proxy, which shall be in writing,
and
the manner in which the same shall be executed and the production
of the
authority of any person signing on behalf of a Debentureholder;
|
|
(b)
|
the
deposit of instruments appointing proxies at such place as the Debenture
Trustee, the Trust or the Debentureholder convening the meeting,
as the
case may be, may, in the notice convening the meeting, direct and
the
time, if any, before the holding of the meeting or any adjournment
thereof
by which the same must be deposited; and
|
|
(c)
|
the
deposit of instruments appointing proxies at some approved place
or places
other than the place at which the meeting is to be held and enabling
particulars of such instruments appointing proxies to be mailed,
faxed or
sent by other electronic means before the meeting to the Trust or
to the
Debenture Trustee at the place where the same is to be held and for
the
voting of proxies so deposited as though the instruments themselves
were
produced at the meeting.
|
Any
regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be recognized at any meeting
as the holders of any Debentures, or as entitled to vote or be present at the
meeting in respect thereof, shall be Debentureholders and persons whom
Debentureholders have by instrument in writing duly appointed as their
proxies.
The
Trust and the Debenture Trustee, by their respective officers and directors,
the
Auditors of the Trust and the legal advisers of the Trust, the Debenture Trustee
or any Debentureholder may attend any meeting of the Debentureholders, but
shall
have no vote as such.
In
addition to the powers conferred upon them by any other provisions of this
Indenture or by law, a meeting of the Debentureholders shall have the following
powers exercisable from time to time by Extraordinary Resolution, subject in
the
case of the matters in paragraphs (a), (b), (c), (d) and (l) to receipt of
the
prior approval of the Toronto Stock Exchange or such other exchange on which
the
Debentures are then listed:
|
(a)
|
power
to authorize the Debenture Trustee to grant extensions of time for
payment
of any principal, premium or interest on the Debentures, whether
or not
the principal, premium, or interest, the payment of which is extended,
is
at the time due or overdue;
|
|
(b)
|
power
to sanction any modification, abrogation, alteration, compromise
or
arrangement of the rights of the Debentureholders or the Debenture
Trustee
against the Trust, or against its property, whether such rights arise
under this Indenture or the Debentures or otherwise;
|
|
(c)
|
power
to assent to any modification of or change in or addition to or omission
from the provisions contained in this Indenture or any Debenture
which
shall be agreed to by the Trust and to authorize the
|
55
|
|
Debenture
Trustee to concur in and execute any indenture supplemental hereto
embodying any modification, change, addition or omission;
|
|
(d)
|
power
to sanction any scheme for the reconstruction, reorganization or
recapitalization of the Trust or for the consolidation, amalgamation
or
merger of the Trust with any other person or for the sale, leasing,
transfer or other disposition of all or substantially all of the
undertaking, property and assets of the Trust or any part thereof,
provided that no such sanction shall be necessary in respect of any
such
transaction if the provisions of Section 11.1 shall have been complied
with;
|
|
(e)
|
power
to direct or authorize the Debenture Trustee to exercise any power,
right,
remedy or authority given to it by this Indenture in any manner specified
in any such Extraordinary Resolution or to refrain from exercising
any
such power, right, remedy or authority;
|
|
(f)
|
power
to waive, and direct the Debenture Trustee to waive, any default
hereunder
and/or cancel any declaration made by the Debenture Trustee pursuant
to
Section 8.1 either unconditionally or upon any condition specified
in such
Extraordinary Resolution;
|
|
(g)
|
power
to restrain any Debentureholder from taking or instituting any suit,
action or proceeding for the purpose of enforcing payment of the
principal, premium or interest on the Debentures, or for the execution
of
any trust or power hereunder;
|
|
(h)
|
power
to direct any Debentureholder who, as such, has brought any action,
suit
or proceeding to stay or discontinue or otherwise deal with the same
upon
payment, if the taking of such suit, action or proceeding shall have
been
permitted by Section 8.5, of the costs, charges and expenses reasonably
and properly incurred by such Debentureholder in connection therewith;
|
|
(i)
|
power
to assent to any compromise or arrangement with any creditor or creditors
or any class or classes of creditors, whether secured or otherwise,
and
with holders of any units or other securities of the Trust;
|
|
(j)
|
power
to appoint a committee with power and authority (subject to such
limitations, if any, as may be prescribed in the resolution) to exercise,
and to direct the Debenture Trustee to exercise, on behalf of the
Debentureholders, such of the powers of the Debentureholders as are
exercisable by Extraordinary Resolution or other resolution as shall
be
included in the resolution appointing the committee. The resolution
making
such appointment may provide for payment of the expenses and disbursements
of and compensation to such committee. Such committee shall consist
of
such number of persons as shall be prescribed in the resolution appointing
it and the members need not be themselves Debentureholders. Every
such
committee may elect its chairman and may make regulations respecting
its
quorum, the calling of its meetings, the filling of vacancies occurring
in
its number and its procedure generally. Such regulations may provide
that
the committee may act at a meeting at which a quorum is present or
may act
by minutes signed by the number of members thereof necessary to constitute
a quorum. All acts of any such committee within the authority delegated
to
it shall be binding upon all Debentureholders. Neither the committee
nor
any member thereof shall be liable for any loss arising from or in
connection with any action taken or omitted to be taken by them in
good
faith;
|
|
(k)
|
power
to remove the Debenture Trustee from office and to appoint a new
Debenture
Trustee or Debenture Trustees provided that no such removal shall
be
effective unless and until a new Debenture Trustee or Debenture Trustees
shall have become bound by this Indenture;
|
|
(l)
|
power
to sanction the exchange of the Debentures for or the conversion
thereof
into units, bonds, debentures or other securities or obligations
of the
Trust or of any other person formed or to be formed;
|
|
(m)
|
power
to authorize the distribution in specie of any shares or securities
received pursuant to a transaction authorized under the provisions
of
Section 13.11(l); and
|
56
|
(n)
|
power
to amend, alter or repeal any Extraordinary Resolution previously
passed
or sanctioned by the Debentureholders or by any committee appointed
pursuant to Section 13.11(j).
|
Notwithstanding
the foregoing provisions of this Section 13.11 none of such provisions shall
in
any manner allow or permit any amendment, modification, abrogation or addition
to the provisions of Article 5 which could reasonably be expected to
detrimentally affect the rights, remedies or recourse of the priority of the
Senior Creditors.
|
(a)
|
The
expression "Extraordinary
Resolution" when used in this Indenture means, subject as
hereinafter in this Article provided, a resolution proposed to be
passed
as an Extraordinary Resolution at a meeting of Debentureholders (including
an adjourned meeting) duly convened for the purpose and held in accordance
with the provisions of this Article at which the holders of not less
than
25% of the principal amount of the Debentures then outstanding, and
if the
meeting is a Serial Meeting, at which holders of not less than 25%
of the
principal amount of the Debentures then outstanding of each especially
affected series, are present in person or by proxy and passed by
the
favourable votes of the holders of not less than 66 2/3% of the
principal amount of the Debentures, and if the meeting is a Serial
Meeting
by the affirmative vote of the holders of not less than 66 2/3% of
each especially affected series, in each case present or represented
by
proxy at the meeting and voted upon on a poll on such resolution.
|
|
(b)
|
If,
at any such meeting, the holders of not less than 25% of the principal
amount of the Debentures then outstanding and, if the meeting is
a Serial
Meeting, 25% of the principal amount of the Debentures then outstanding
of
each especially affected series, in each case are not present in
person or
by proxy within 30 minutes after the time appointed for the meeting,
then
the meeting, if convened by or on the requisition of Debentureholders,
shall be dissolved but in any other case it shall stand adjourned
to such
date, being not less than 14 nor more than 60 days later, and to
such
place and time as may be appointed by the chairman. Not less than
10 days
notice shall be given of the time and place of such adjourned meeting
in
the manner provided in Section 14.2. Such notice shall state that
at the
adjourned meeting the Debentureholders present in person or by proxy
shall
form a quorum. At the adjourned meeting the Debentureholders present
in
person or by proxy shall form a quorum and may transact the business
for
which the meeting was originally convened and a resolution proposed
at
such adjourned meeting and passed thereat by the affirmative vote
of
holders of not less than 66 2/3% of the principal amount of the
Debentures and, if the meeting is a Serial Meeting, by the affirmative
vote of the holders of not less than 66 2/3% of the principal amount
of the Debentures of each especially affected series, in each case
present
or represented by proxy at the meeting voted upon on a poll shall
be an
Extraordinary Resolution within the meaning of this Indenture,
notwithstanding that the holders of not less than 25% in principal
amount
of the Debentures then outstanding, and if the meeting is a Serial
Meeting, holders of not less than 25% of the principal amount of
the
Debentures then outstanding of each especially affected series, are
not
present in person or by proxy at such adjourned meeting.
|
|
13.13
|
Any
one or more of the powers in this Indenture stated to be exercisable by the
Debentureholders by Extraordinary Resolution or otherwise may be exercised
from
time to time and the exercise of any one or more of such powers from time to
time shall not be deemed to exhaust the rights of the Debentureholders to
exercise the same or any other such power or powers thereafter from time to
time.
|
13.14
|
Minutes
of all resolutions and proceedings at every meeting as aforesaid shall be made
and duly entered in books to be from time to time provided for that purpose
by
the Debenture Trustee at the expense of the
57
Trust,
and any such minutes as aforesaid, if signed by the chairman of the meeting
at
which such resolutions were passed or proceedings had, or by the chairman of
the
next succeeding meeting of the Debentureholders, shall be prima facie evidence of the
matters therein stated and, until the contrary is proved, every such meeting,
in
respect of the proceedings of which minutes shall have been made, shall be
deemed to have been duly held and convened, and all resolutions passed thereat
or proceedings taken thereat to have been duly passed and taken.
|
13.15
|
All
actions which may be taken and all powers that may be exercised by the
Debentureholders at a meeting held as hereinbefore in this Article provided
may
also be taken and exercised by the holders of 66 2/3% of the principal
amount of all the outstanding Debentures and, if the meeting at which such
actions might be taken would be a Serial Meeting, by the holders of 66 2/3%
of the principal amount of the Debentures then outstanding of each especially
affected series, by an instrument in writing signed in one or more counterparts
and the expression "Extraordinary Resolution" when
used in this Indenture shall include an instrument so signed.
Every
resolution and every Extraordinary Resolution passed in accordance with the
provisions of this Article at a meeting of Debentureholders shall be binding
upon all the Debentureholders, whether present at or absent from such meeting,
and every instrument in writing signed by Debentureholders in accordance with
Section 13.15 shall be binding upon all the Debentureholders, whether
signatories thereto or not, and each and every Debentureholder and the Debenture
Trustee (subject to the provisions for its indemnity herein contained) shall
be
bound to give effect accordingly to every such resolution, Extraordinary
Resolution and instrument in writing.
|
(a)
|
Any
request, direction, notice, consent or other instrument which this
Indenture may require or permit to be signed or executed by the
Debentureholders may be in any number of concurrent instruments of
similar
tenor signed or executed by such Debentureholders.
|
|
(b)
|
The
Debenture Trustee may, in its discretion, require proof of execution
in
cases where it deems proof desirable and may accept such proof as
it shall
consider proper.
|
If
in the opinion of Counsel any business to be transacted at any meeting, or
any
action to be taken or power to be exercised by instrument in writing under
Section 13.15, does not adversely affect the rights of the holders of Debentures
of one or more series, the provisions of this Article 13 shall apply as if
the
Debentures of such series were not outstanding and no notice of any such meeting
need be given to the holders of Debentures of such series. Without limiting
the
generality of the foregoing, a proposal to modify or terminate any covenant
or
agreement which is effective only so long as Debentures of a particular series
are outstanding shall be deemed not to adversely affect the rights of the
holders of Debentures of any other series.
ARTICLE 14
|
14.1
|
Any
notice to the Trust under the provisions of this Indenture shall be valid and
effective if delivered to the Trust at: 0000, 000 - 0xx
Xxxxxx
X.X., Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: President, and a copy delivered
to Burnet, Xxxxxxxxx & Xxxxxx LLP, 1400, 000 - 0xx
Xxxxxx
X.X., Xxxxxxx, Xxxxxxx X0X 0X0, Attention: Xxxx Maslechko, or if given by
registered letter, postage prepaid, to such offices and so addressed and if
mailed, shall be deemed to have been effectively given three days following
the
mailing thereof. The Trust may from time to time notify the Debenture Trustee
in
writing of a change of address which thereafter, until changed by like notice,
shall be the address of the Trust for all purposes of this Indenture.
58
All
notices to be given hereunder with respect to the Debentures shall be deemed
to
be validly given to the holders thereof if sent by first class mail, postage
prepaid, by letter or circular addressed to such holders at their post office
addresses appearing in any of the registers hereinbefore mentioned and shall
be
deemed to have been effectively given three days following the day of mailing.
Accidental error or omission in giving notice or accidental failure to mail
notice to any Debentureholder or the inability of the Trust to give or mail
any
notice due to anything beyond the reasonable control of the Trust shall not
invalidate any action or proceeding founded thereon.
If
any notice given in accordance with the foregoing paragraph would be unlikely
to
reach the Debentureholders to whom it is addressed in the ordinary course of
post by reason of an interruption in mail service, whether at the place of
dispatch or receipt or both, the Trust shall give such notice by publication
at
least once in the Cities of Calgary and Toronto (or in such of those cities
as,
in the opinion of the Debenture Trustee, is sufficient in the particular
circumstances), each such publication to be made in a daily newspaper of general
circulation in the designated city.
Any
notice given to Debentureholders by publication shall be deemed to have been
given on the day on which publication shall have been effected at least once
in
each of the newspapers in which publication was required.
All
notices with respect to any Debenture may be given to whichever one of the
holders thereof (if more than one) is named first in the registers hereinbefore
mentioned, and any notice so given shall be sufficient notice to all holders
of
any persons interested in such Debenture.
Any
notice to the Debenture Trustee under the provisions of this Indenture shall
be
valid and effective if delivered to the Debenture Trustee at its principal
office in the City of Calgary, at 000, 000 - 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx,
X0X 0X0, Attention: Manager, Corporate Trust or if given by registered letter,
postage prepaid, to such office and so addressed and, if mailed, shall be deemed
to have been effectively given three days following the mailing thereof.
If
by reason of any interruption of mail service, actual or threatened, any notice
to be given to the Debenture Trustee would reasonably be unlikely to reach
its
destination by the time notice by mail is deemed to have been given pursuant
to
Section 14.3, such notice shall be valid and effective only if delivered at
the
appropriate address in accordance with Section 14.3.
ARTICLE 15
The
Debenture Trustee represents to the Trust that at the date of execution and
delivery by it of this Indenture there exists no material conflict of interest
in the role of the Debenture Trustee as a fiduciary hereunder but if,
notwithstanding the provisions of this Section 15.1, such a material conflict
of
interest exists, or hereafter arises, the validity and enforceability of this
Indenture, and the Debentures issued hereunder, shall not be affected in any
manner whatsoever by reason only that such material conflict of interest exists
or arises but the Debenture Trustee shall, within 30 days after ascertaining
that it has a material conflict of interest, either eliminate such material
conflict of interest or resign in the manner and with the effect specified
in
Section 15.2.
59
The
Debenture Trustee may resign its trust and be discharged from all further duties
and liabilities hereunder by giving to the Trust 90 days notice in writing
or
such shorter notice as the Trust may accept as sufficient. If at any time a
material conflict of interest exists in the Debenture Trustee's role as a
fiduciary hereunder the Debenture Trustee shall, within 30 days after
ascertaining that such a material conflict of interest exists, either eliminate
such material conflict of interest or resign in the manner and with the effect
specified in this Section 15.2. The validity and enforceability of this
Indenture and of the Debentures issued hereunder shall not be affected in any
manner whatsoever by reason only that such a material conflict of interest
exists. In the event of the Debenture Trustee resigning or being removed or
being dissolved, becoming bankrupt, going into liquidation or otherwise becoming
incapable of acting hereunder, the Trust shall forthwith appoint a new Debenture
Trustee unless a new Debenture Trustee has already been appointed by the
Debentureholders. Failing such appointment by the Trust, the retiring Debenture
Trustee or any Debentureholder may apply to a Judge of the Court of Queen's
Bench of Alberta, on such notice as such Judge may direct at the Trust's
expense, for the appointment of a new Debenture Trustee but any new Debenture
Trustee so appointed by the Trust or by the Court shall be subject to removal
as
aforesaid by the Debentureholders and the appointment of such new Debenture
Trustee shall be effective only upon such new Debenture Trustee becoming bound
by this Indenture. Any new Debenture Trustee appointed under any provision
of
this Section 15.2 shall be a corporation authorized to carry on the business
of
a trust company in all of the Provinces of Canada. On any new appointment the
new Debenture Trustee shall be vested with the same powers, rights, duties
and
responsibilities as if it had been originally named herein as Debenture
Trustee.
Any
company into which the Debenture Trustee may be merged or, with or to which
it
may be consolidated, amalgamated or sold, or any company resulting from any
merger, consolidation, sale or amalgamation to which the Debenture Trustee
shall
be a party, shall be the successor trustee under this Indenture without the
execution of any instrument or any further act. Nevertheless, upon the written
request of the successor Debenture Trustee or of the Trust, the Debenture
Trustee ceasing to act shall execute and deliver an instrument assigning and
transferring to such successor Debenture Trustee, upon the trusts herein
expressed, all the rights, powers and trusts of the Debenture Trustee so ceasing
to act, and shall duly assign, transfer and deliver all property and money
held
by such Debenture Trustee to the successor Debenture Trustee so appointed in
its
place. Should any deed, conveyance or instrument in writing from the Trust
be
required by any new Debenture Trustee for more fully and certainly vesting
in
and confirming to it such estates, properties, rights, powers and trusts, then
any and all such deeds, conveyances and instruments in writing shall on request
of said new Debenture Trustee, be made, executed, acknowledged and delivered
by
the Trust.
In
the exercise of the rights, duties and obligations prescribed or conferred
by
the terms of this Indenture, the Debenture Trustee shall act honestly and in
good faith and exercise that degree of care, diligence and skill that a
reasonably prudent trustee would exercise in comparable circumstances.
In
the exercise of its rights, duties and obligations hereunder the Debenture
Trustee may, if acting in good faith, rely, as to the truth of the statements
and accuracy of the opinions expressed therein, upon statutory declarations,
opinions, reports or certificates furnished pursuant to any covenant, condition
or requirement of this Indenture or required by the Debenture Trustee to be
furnished to it in the exercise of its rights and duties hereunder, if the
Debenture Trustee examines such statutory declarations, opinions, reports or
certificates and determines that they comply with Section 15.5, if applicable,
and with any other applicable requirements of this Indenture. The Debenture
Trustee may nevertheless, in its discretion, require further proof in cases
where it deems further proof desirable. Without restricting the foregoing,
the
Debenture Trustee may rely on an opinion of Counsel satisfactory to the
Debenture Trustee notwithstanding that it is delivered by a solicitor or firm
which acts as solicitors for the Trust.
The
Trust shall furnish to the Debenture Trustee evidence of compliance with the
conditions precedent provided for in this Indenture relating to any action
or
step required or permitted to be taken by the Trust
60
or
the Debenture Trustee under this Indenture or as a result of any obligation
imposed under this Indenture, including without limitation, the certification
and delivery of Debentures hereunder, the satisfaction and discharge of this
Indenture and the taking of any other action to be taken by the Debenture
Trustee at the request of or on the application of the Trust, forthwith if
and
when (a) such evidence is required by any other Section of this Indenture to
be
furnished to the Debenture Trustee in accordance with the terms of this Section
15.5, or (b) the Debenture Trustee, in the exercise of its rights and duties
under this Indenture, gives the Trust written notice requiring it to furnish
such evidence in relation to any particular action or obligation specified
in
such notice.
Such
evidence shall consist of:
|
(a)
|
a
certificate made by any one officer or director of AEI, on behalf
of the
Trust, stating that any such condition precedent has been complied
with in
accordance with the terms of this Indenture;
|
|
(b)
|
in
the case of a condition precedent compliance with which is, by the
terms
of this Indenture, made subject to review or examination by a solicitor,
an opinion of Counsel that such condition precedent has been complied
with
in accordance with the terms of this Indenture; and
|
|
(c)
|
in
the case of any such condition precedent compliance with which is
subject
to review or examination by auditors or accountants, an opinion or
report
of the Auditors of the Trust, whom the Debenture Trustee for such
purposes
hereby approves, that such condition precedent has been complied
with in
accordance with the terms of this Indenture.
|
Whenever
such evidence relates to a matter other than the certificates and delivery
of
Debentures and the satisfaction and discharge of this Indenture, and except
as
otherwise specifically provided herein, such evidence may consist of a report
or
opinion of any solicitor, auditor, accountant, engineer or appraiser or any
other person whose qualifications give authority to a statement made by him,
provided that if such report or opinion is furnished by a trustee, officer
or
employer of the Trust it shall be in the form of a statutory declaration. Such
evidence shall be, so far as appropriate, in accordance with the immediately
preceding paragraph of this Section.
Each
statutory declaration, certificate, opinion or report with respect to compliance
with a condition precedent provided for in the Indenture shall include (a)
a
statement by the person giving the evidence that he has read and is familiar
with those provisions of this Indenture relating to the condition precedent
in
question, (b) a brief statement of the nature and scope of the examination
or
investigation upon which the statements or opinions contained in such evidence
are based, (c) a statement that, in the belief of the person giving such
evidence, he has made such examination or investigation as is necessary to
enable him to make the statements or give the opinions contained or expressed
therein, and (d) a statement whether in the opinion of such person the
conditions precedent in question have been complied with or satisfied.
The
Trust shall furnish to the Debenture Trustee at any time if the Debenture
Trustee reasonably so requires, its certificate that the Trust has complied
with
all covenants, conditions or other requirements contained in this Indenture,
the
non-compliance with which would, with the giving of notice or the lapse of
time,
or both, or otherwise, constitute an Event of Default, or if such is not the
case, specifying the covenant, condition or other requirement which has not
been
complied with and giving particulars of such non-compliance. The Trust shall,
whenever the Debenture Trustee so requires, furnish the Debenture Trustee with
evidence by way of statutory declaration, opinion, report or certificate as
specified by the Debenture Trustee as to any action or step required or
permitted to be taken by the Trust or as a result of any obligation imposed
by
this Indenture.
Except
as otherwise specifically provided or prescribed by this Indenture, whenever
in
the administration of the provisions of this Indenture the Debenture Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, the Debenture Trustee, if
acting in good faith, may rely upon an Officer's Certificate.
61
|
15.7
|
Experts,
Advisers and Agents
|
The
Debenture Trustee may:
|
(a)
|
employ
or retain and act and rely on the opinion or advice of or information
obtained from any solicitor, auditor, valuer, engineer, surveyor,
appraiser or other expert, whether obtained by the Debenture Trustee
or by
the Trust, or otherwise, and shall not be liable for acting, or refusing
to act, in good faith on any such opinion or advice and may pay proper
and
reasonable compensation for all such legal and other advice or assistance
as aforesaid; and
|
|
(b)
|
employ
such agents and other assistants as it may reasonably require for
the
proper discharge of its duties hereunder, and may pay reasonable
remuneration for all services performed for it (and shall be entitled
to
receive reasonable remuneration for all services performed by it)
in the
discharge of the trusts hereof and compensation for all disbursements,
costs and expenses made or incurred by it in the discharge of its
duties
hereunder and in the management of the trusts hereof and any solicitors
employed or consulted by the Debenture Trustee may, but need not
be,
solicitors for the Trust.
|
Subject
to Sections 15.1 and 15.3, the Debenture Trustee may, in its personal or other
capacity, buy, sell, lend upon and deal in the Debentures and generally contract
and enter into financial transactions with the Trust or otherwise, without
being
liable to account for any profits made thereby.
Unless
otherwise provided in this Indenture, any monies held by the Debenture Trustee,
which, under the trusts of this Indenture, may or ought to be invested or which
may be on deposit with the Debenture Trustee or which may be in the hands of
the
Debenture Trustee, may be invested and reinvested in the name or under the
control of the Debenture Trustee in securities in which, under the laws of
the
Province of Alberta, trustees are authorized to invest trust monies, provided
that such securities are expressed to mature within two years or such shorter
period selected to facilitate any payments expected to be made under this
Indenture, after their purchase by the Debenture Trustee, and unless and until
the Debenture Trustee shall have declared the principal of and interest on
the
Debentures to be due and payable, the Debenture Trustee shall so invest such
monies at the written direction of the Trust given in a reasonably timely
manner. Pending the investment of any monies as hereinbefore provided, such
monies may be deposited in the name of the Debenture Trustee in any chartered
bank of Canada or, with the consent of the Trust, in the deposit department
of
the Debenture Trustee or any other loan or trust company authorized to accept
deposits under the laws of Canada or any Province thereof at the rate of
interest, if any, then current on similar deposits.
Unless
and until the Debenture Trustee shall have declared the principal of and
interest on the Debentures to be due and payable, the Debenture Trustee shall
pay over to the Trust all interest received by the Debenture Trustee in respect
of any investments or deposits made pursuant to the provisions of this
Section.
Except
as provided in Section 8.2 and as otherwise specifically provided herein, the
Debenture Trustee shall not, subject to Section 15.3, be bound to give notice
to
any person of the execution hereof, nor to do, observe or perform or see to
the
observance or performance by the Trust of any of the obligations herein imposed
upon the Trust or of the covenants on the part of the Trust herein contained,
nor in any way to supervise or interfere with the conduct of the Trust's
business, unless the Debenture Trustee shall have been required to do so in
writing by the holders of not less than 25% of the aggregate principal amount
of
the Debentures then outstanding or by any Extraordinary Resolution of the
Debentureholders passed in accordance with the provisions contained in Article
13, and then only after it shall have been funded and indemnified to its
satisfaction against all actions, proceedings, claims and demands to which
it
may render itself liable and all costs, charges, damages and expenses which
it
may incur by so doing.
62
The
Debenture Trustee shall not be required to give any bond or security in respect
of the execution of the trusts and powers of this Indenture or otherwise in
respect of the premises.
Except
as in this Indenture otherwise specifically provided, the Debenture Trustee
shall not be bound to act in accordance with any direction or request of the
Trust or of the trustee until a duly authenticated copy of the instrument or
resolution containing such direction or request shall have been delivered to
the
Debenture Trustee, and the Debenture Trustee shall be empowered to act upon
any
such copy purporting to be authenticated and believed by the Debenture Trustee
to be genuine.
The
obligation of the Debenture Trustee to commence or continue any act, action
or
proceeding for the purpose of enforcing the rights of the Debenture Trustee
and
of the Debentureholders hereunder shall be conditional upon the Debentureholders
furnishing when required by notice in writing by the Debenture Trustee,
sufficient funds to commence or continue such act, action or proceeding and
indemnity reasonably satisfactory to the Debenture Trustee to protect and hold
harmless the Debenture Trustee against the costs, charges and expenses and
liabilities to be incurred thereby and any loss and damage it may suffer by
reason thereof.
None
of the provisions contained in this Indenture shall require the Debenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers unless indemnified as aforesaid.
The
Debenture Trustee may, before commencing or at any time during the continuance
of any such act, action or proceeding require the Debentureholders at whose
instance it is acting to deposit with the Debenture Trustee the Debentures
held
by them for which Debentures the Debenture Trustee shall issue receipts.
The
Debenture Trustee represents to the Trust that at the date of execution and
delivery by it of this Indenture it is authorized to carry on the business
of a
trust company in the Province of Alberta but if, notwithstanding the provisions
of this Section 15.14, it ceases to be so authorized to carry on business,
the
validity and enforceability of this Indenture and the securities issued
hereunder shall not be affected in any manner whatsoever by reason only of
such
event but the Debenture Trustee shall, within 90 days after ceasing to be
authorized to carry on the business of trust company in the Province of Alberta,
either become so authorized or resign in the manner and with the effect
specified in Section 15.2.
|
(a)
|
The
Trust shall pay to the Debenture Trustee from time to time compensation
for its services hereunder as agreed separately by the Trust and
the
Debenture Trustee, and shall pay or reimburse the Debenture Trustee
upon
its request for all reasonable expenses, disbursements and advances
incurred or made by the Debenture Trustee in the administration or
execution of its duties under this Indenture (including the reasonable
and
documented compensation and disbursements of its Counsel and all
other
advisers and assistants not regularly in its employ), both before
any
default hereunder and thereafter until all duties of the Debenture
Trustee
under this Indenture shall be finally and fully performed. The Debenture
Trustee's compensation shall not be limited by any law on compensation
of
a trustee of an express trust.
|
|
(b)
|
The
Trust hereby indemnifies and saves harmless the Debenture Trustee
and its
directors, officers and employees from and against any and all loss,
damages, charges, expenses, claims, demands, actions or liability
whatsoever which may be brought against the Debenture Trustee or
which it
may suffer or incur as a result of or arising out of the performance
of
its duties and obligations hereunder save only in the event of
|
63
|
|
the
negligent failure to act, or the wilful misconduct or bad faith of
the
Debenture Trustee. This indemnity will survive the termination or
discharge of this Indenture and the resignation or removal of the
Debenture Trustee. The Debenture Trustee shall notify the Trust promptly
of any claim for which it may seek indemnity. The Trust shall defend
the
claim and the Debenture Trustee shall co-operate in the defence.
The
Debenture Trustee may have separate counsel and the Trust shall pay
the
reasonable fees and expenses of such Counsel. The Trust need not
pay for
any settlement made without its consent, which consent must not be
unreasonably withheld. This indemnity shall survive the resignation
or
removal of the Debenture Trustee or the discharge of this Indenture.
|
|
(c)
|
The
Trust need not reimburse any expense or indemnify against any loss
or
liability incurred by the Debenture Trustee through negligence or
bad
faith or breach of the Debenture Trustee's duties hereunder.
|
|
15.16
|
The
Debenture Trustee hereby accepts the trusts in this Indenture declared and
provided for and agrees to perform the same upon the terms and conditions herein
set forth and to hold all rights, privileges and benefits conferred hereby
and
by law in trust for the various persons who shall from time to time be
Debentureholders, subject to all the terms and conditions herein set
forth.
ARTICLE 16
From
time to time the Debenture Trustee and, when authorized by a resolution of
the
directors of AEI, on behalf of the Trust, the Trust, may, and they shall when
required by this Indenture, execute, acknowledge and deliver by their proper
officers deeds or indentures supplemental hereto which thereafter shall form
part hereof, for any one or more of the following purposes:
|
(a)
|
providing
for the issuance of Additional Debentures under this Indenture;
|
|
(b)
|
adding
to the covenants of the Trust herein contained for the protection
of the
Debentureholders, or of the Debentures of any series, or providing
for
events of default, in addition to those herein specified;
|
|
(c)
|
making
such provisions not inconsistent with this Indenture as may be necessary
or desirable with respect to matters or questions arising hereunder,
including the making of any modifications in the form of the Debentures
which do not affect the substance thereof and which in the opinion
of the
Debenture Trustee relying on an opinion of Counsel will not be prejudicial
to the interests of the Debentureholders;
|
|
(d)
|
evidencing
the succession, or successive successions, of others to the Trust
and the
covenants of and obligations assumed by any such successor in accordance
with the provisions of this Indenture;
|
|
(e)
|
giving
effect to any Extraordinary Resolution passed as provided in Article
13;
and
|
|
(f)
|
for
any other purpose not inconsistent with the terms of this Indenture.
|
Unless
the supplemental indenture requires the consent or concurrence of
Debentureholders or the holders of a particular series of Debentures, as the
case may be, by Extraordinary Resolution, the consent or concurrence of
Debentureholders or the holders of a particular series of Debentures, as the
case may be, shall not be required in connection with the execution,
acknowledgement or delivery of a supplemental indenture. The Trust and the
Debenture Trustee may amend any of the provisions of this Indenture related
to
matters of United States law or the issuance of Debentures into the United
States in order to ensure that such issuances can be properly done in accordance
with applicable law in the United States without the consent or approval of
the
Debentureholders. Further, the Trust and the Debenture Trustee may without
the
consent or concurrence of the Debentureholders or the holders of a particular
series of Debentures, as the case may be, by supplemental indenture or
otherwise, make any
64
changes
or corrections in this Indenture which it shall have been advised by Counsel
are
required for the purpose of curing or correcting any ambiguity or defective
or
inconsistent provisions or clerical omissions or mistakes or manifest errors
contained herein or in any indenture supplemental hereto or any Written
Direction of the Trust provided for the issue of Debentures, providing that
in
the opinion of the Debenture Trustee (relying upon an opinion of Counsel) the
rights of the Debentureholders are in no way prejudiced thereby.
ARTICLE 17
|
17.1
|
This
Indenture may be simultaneously executed in several counterparts, each of which
when so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument.
The
parties hereby acknowledge that in addition to entering into this Indenture
on
its own behalf, AEI is entering into this Indenture on behalf of the Trust
and
the obligations of the Trust hereunder shall not be personally binding upon
AEI,
the trustee of the Trust or any of the registered or beneficial unitholders
of
the Trust, or any annuitant under a plan of which a unitholder of the Trust
acts
as trustee or carrier, and resort shall not be had to, nor shall recourse or
satisfaction be sought from, any of such persons or the private property of
any
such persons. Any recourse against the Trust or any of the
aforementioned persons in any manner in respect of any indebtedness, obligation
or liability of the Trust arising hereunder or arising in connection herewith
or
from the matters to which this Indenture relates, if any, including, without
limitation, claims based on negligence or otherwise tortious behaviour, shall
be
limited to, and satisfied only out of, the Trust Fund, as defined in the trust
indenture by which the Trust is established made as of April 20, 2001, as
amended from time to time.
65
|
17.3
|
For
the purpose of convenience this Indenture may be referred to as bearing the
formal date of December 17, 2002 irrespective of the actual date of
execution hereof.
|
ACCLAIM
ENERGY TRUST, by
its attorney,
|
||
|
ACCLAIM
ENERGY INC.
|
||
|
By:
|
(signed)
"J. Xxxx
Xxxxxxx"
|
|
|
J.
Xxxx Xxxxxxx
|
||
|
President
and Chief Executive Officer
|
||
|
ACCLAIM
ENERGY INC.
|
||
|
By:
|
(signed)
"J. Xxxx
Xxxxxxx"
|
|
|
J.
Xxxx Xxxxxxx
|
||
|
President
and Chief Executive Officer
|
||
|
COMPUTERSHARE
TRUST COMPANY OF
|
||
|
CANADA
|
||
|
By:
|
(signed)
"Authorized
Signatory"
|
|
|
By:
|
(signed)
"Xxx
Xxxxxx"
|
|
66
SCHEDULE
"A"
TO
THE TRUST INDENTURE AMONG
ACCLAIM
ENERGY TRUST, ACCLAIM ENERGY INC. AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
FORM
OF DEBENTURE
SCHEDULE
"A"
This
Debenture is a Global Debenture within the meaning of the Indenture herein
referred to and is registered in the name of a Depository or a nominee thereof.
This Debenture may not be transferred to or exchanged for Debentures registered
in the name of any person other than the Depository or a nominee thereof and
no
such transfer may be registered except in the limited circumstances described
in
the Indenture. Every Debenture authenticated and delivered upon registration
of,
transfer of, or in exchange for, or in lieu of, this Debenture shall be a Global
Debenture subject to the foregoing, except in such limited circumstances
described in the Indenture.
Unless
this Debenture is presented by an authorized representative of The Canadian
Depository for Securities Limited ("CDS") to Acclaim Energy Trust or its agent
for registration of transfer, exchange or payment, and any Debenture issued
in
respect thereof is registered in the name of CDS & CO., or in such other
name as is requested by an authorized representative of CDS, (and any payment
is
made to CDS & Co. or to such other entity as is requested by an authorized
representative of CDS) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since as the registered holder hereof,
CDS & CO. has an interest herein.
CUSIP00433
B AA 0
|
No.β’
|
$45,000,000
|
ACCLAIM
ENERGY TRUST
(A
trust governed by the laws of Alberta)
11%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURE
DUE
MARCH 31, 2003
(December
31, 2007, if extended)
ACCLAIM
ENERGY TRUST (the
"Trust") for value
received hereby acknowledges itself indebted and, subject to the provisions
of
the trust indenture (the "Indenture") dated as of
December 17, 2002 among the Trust, Acclaim Energy Inc. and Computershare
Trust Company of Canada (the "Debenture Trustee"), promises
to pay to the registered holder hereof on December 31, 2007 (the "Maturity Date") or on such
earlier date as the principal amount hereof may become due in accordance with
the provisions of the Indenture the principal sum of Forty Five Million Dollars
($45,000,000) in lawful money of Canada on presentation and surrender of this
Initial Debenture at the main branch of the Debenture Trustee in Calgary,
Alberta or Toronto, Ontario in accordance with the terms of the Indenture and,
subject as hereinafter provided, to pay interest on the principal amount hereof
from the date hereof, or from the last Interest Payment Date to which interest
shall have been paid or made available for payment hereon, whichever is later,
at the rate of 11% per annum, in like money, in arrears in equal semi-annual
instalments (less any tax required by law to be deducted) on June 30 and
December 31 in each year commencing on June 30, 2003 and the last
payment (representing interest payable from the last Interest Payment Date
to,
but excluding, the Maturity Date) to fall due on the Maturity Date and, should
the Trust at any time make default in the payment of any principal or interest,
to pay interest on the amount in default at the same rate, in like money and
on
the same dates. For certainty, the first interest payment will include interest
accrued from December 17, 2002 to, but excluding June 30, 2003, which
will be equal to $59.52 for each $1,000 principal amount of the Initial
Debentures. If the Arrangement does not become effective prior to
5:00 p.m. (Calgary time) on March 31, 2003, substantially and in all
material respects as contemplated in the Arrangement Agreement, and as the
terms
of such agreement are described in the prospectus of the Trust dated
December 9, 2002, or if the Arrangement Agreement is terminated at any
earlier time, the Maturity Date will be March 31, 2003. If the
Arrangement becomes effective prior to 5:00 p.m. (Calgary time) on
March 31, 2003, substantially and in all material respects as contemplated
in the Arrangement Agreement, and as the terms of such agreement are described
in the prospectus of the Trust dated December 9, 2002, the Maturity Date
will be automatically extended from March 31, 2003 to December 31,
2007 without any further act or formality on the part of the Trust or the
Debenture Trustee.
Interest
hereon shall be payable by cheque mailed by prepaid ordinary mail to the
registered holder hereof or by electronic transfer of funds to the registered
holder hereof and, subject to the provisions of the Indenture, the mailing
of
such cheque or the sending of such electronic transfer of funds shall, to the
extent of the
A-1
sum
represented thereby (plus the amount of any tax withheld), satisfy and discharge
all liability for interest on this Initial Debenture.
This
Initial Debenture is one of the Debentures of the Trust issued or issuable
in
one or more series under the provisions of the Indenture. The Initial Debentures
authorized for issue immediately are limited to an aggregate principal amount
of
$45,000,000 in lawful money of Canada. Reference is hereby expressly made to
the
Indenture for a description of the terms and conditions upon which the Initial
Debentures are or are to be issued and held and the rights and remedies of
the
holders of the Initial Debentures and of the Trust and of the Debenture Trustee,
all to the same effect as if the provisions of the Indenture were herein set
forth to all of which provisions the holder of this Initial Debenture by
acceptance hereof assents.
The
Initial Debentures are issuable only in denominations of $1,000 and integral
multiples thereof. Upon compliance with the provisions of the Indenture,
Debentures of any denomination may be exchanged for an equal aggregate principal
amount of Debentures in any other authorized denomination or
denominations.
Any
part, being $1,000 or an integral multiple thereof, of the principal of this
Initial Debenture, provided that the principal amount of this Initial Debenture
is in a denomination in excess of $1,000, is convertible, at the option of
the
holder hereof, upon surrender of this Initial Debenture at the principal office
of the Debenture Trustee in Calgary, Alberta or Toronto, Ontario, at any time
prior to the close of business on the Maturity Date or, if this Initial
Debenture is called for redemption on or prior to such date, then up to but
not
after the close of business on the last Business Day immediately preceding
the
date specified for redemption of this Initial Debenture, into Trust Units
(without adjustment for interest accrued hereon or for dividends or
distributions on Trust Units issuable upon conversion) at a conversion price
of
$3.90 (the "Conversion
Price") per Trust Unit, being a rate of approximately 256.410 Trust Units
for each $1,000 principal amount of Initial Debentures, all subject to the
terms
and conditions and in the manner set forth in the Indenture. The Indenture
makes
provision for the adjustment of the Conversion Price in the events therein
specified. No fractional Trust Units will be issued on any conversion but in
lieu thereof, the Trust will satisfy such fractional interest by a cash payment
equal to the market price of such fractional interest determined in accordance
with the Indenture. No adjustment in the number of Trust Units to be
issued upon conversion will be made for distributions or dividends on Trust
Units issuable upon conversion or for interest accrued on Initial Debentures
surrendered for conversion.
This
Initial Debenture may be redeemed at the option of the Trust on the terms and
conditions set out in the Indenture at the redemption price therein and herein
set out provided that this Initial Debenture is not redeemable on or before
January 1, 2006, except in the event of the satisfaction of certain
conditions after a Change of Control has occurred. After January 1, 2006
and on or prior to January 1, 2007, the Initial Debentures are redeemable
at the option of the Trust at a price equal to $1,050 per Debenture plus accrued
and unpaid interest and otherwise on the terms and conditions described in
the
Indenture. After January 1, 2007 and prior to maturity, the Initial
Debentures are redeemable at the option of the Trust at a price equal to $1,025
per Debenture plus accrued and unpaid interest and otherwise on the terms and
conditions described in the Indenture. The Trust may, on notice as provided
in
the Indenture, at its option and subject to any applicable regulatory approval,
elect to satisfy its obligation to pay all or any portion of the applicable
Redemption Price by the issue of that number of Trust Units obtained by dividing
the applicable Redemption Price by 95% of the weighted average trading price
of
the Trust Units on the Toronto Stock Exchange for the 20 consecutive trading
days ending on the fifth trading day preceding the Redemption Date.
Upon
the occurrence of a Change of Control of the Trust, the Trust is required to
make an offer to purchase all of the Initial Debentures at a price equal to
101%
of the principal amount of such Initial Debentures plus accrued and unpaid
interest up to, but excluding, the date the Initial Debentures are so
repurchased (the "Offer"). If 90% or more
of the
principal amount of all Debentures outstanding on the date the Trust provides
notice of a Change of Control to the Debenture Trustee have been tendered for
purchase pursuant to the Offer, the Trust has the right to redeem and shall
redeem all the remaining outstanding Initial Debentures on the same date and
at
the same price.
If
a takeover bid for Initial Debentures, within the meaning of the Securities Act (Alberta), is
made and 90% or more of the principal amount of all the Initial Debentures
(other than Initial Debentures held at the date of the takeover bid by or on
behalf of the Offeror, Associates or Affiliates of the Offeror or anyone acting
jointly or in concert with the Offeror) are taken up and paid for by the
Offeror, the Offeror will be entitled to acquire the Initial
A-2
Debentures
of those holders who did not accept the offer on the same terms as the Offeror
acquired the first 90% of the principal amount of the Initial Debentures.
The
Trust may, on notice as provided in the Indenture, at its option and subject
to
any applicable regulatory approval, elect to satisfy the obligation to repay
all
or any portion of the principal amount of this Initial Debenture due on the
Maturity Date by the issue of that number of Freely Tradeable Trust Units
obtained by dividing the principal amount of this Initial Debenture to be paid
for in Trust Units pursuant to the exercise by the Trust of the Unit Repayment
Right by 95% of the weighted average trading price of the Trust Units on the
Toronto Stock Exchange for the 20 consecutive trading days ending on the
fifth trading day preceding the Maturity Date.
The
indebtedness evidenced by this Initial Debenture, and by all other Initial
Debentures now or hereafter certified and delivered under the Indenture, is
a
direct unsecured obligation of the Trust, and is subordinated in right of
payment, to the extent and in the manner provided in the Indenture, to the
prior
payment of all Senior Indebtedness (including any indebtedness to trade
creditors), whether outstanding at the date of the Indenture or thereafter
created, incurred, assumed or guaranteed.
The
principal hereof may become or be declared due and payable before the stated
maturity in the events, in the manner, with the effect and at the times provided
in the Indenture.
The
Indenture contains provisions making binding upon all holders of Debentures
outstanding thereunder (or in certain circumstances specific series of
Debentures) resolutions passed at meetings of such holders held in accordance
with such provisions and instruments signed by the holders of a specified
majority of Debentures outstanding (or specific series), which resolutions
or
instruments may have the effect of amending the terms of this Initial Debenture
or the Indenture.
The
Indenture contains provisions disclaiming any personal liability on the part
of
holders of Trust Units, officers or agents of the Trust in respect of any
obligation or claim arising out of the Indenture or this Debenture.
This
Initial Debenture may only be transferred, upon compliance with the conditions
prescribed in the Indenture, in one of the registers to be kept at the principal
office of the Debenture Trustee in the City of Calgary or the City of Toronto
and in such other place or places and/or by such other registrars (if any)
as
the Trust with the approval of the Debenture Trustee may designate. No transfer
of this Initial Debenture shall be valid unless made on the register by the
registered holder hereof or his executors or administrators or other legal
representatives, or his or their attorney duly appointed by an instrument in
form and substance satisfactory to the Debenture Trustee or other registrar,
and
upon compliance with such reasonable requirements as the Debenture Trustee
and/or other registrar may prescribe and upon surrender of this Initial
Debenture for cancellation. Thereupon a new Initial Debenture or Initial
Debentures in the same aggregate principal amount shall be issued to the
transferee in exchange hereof.
This
Initial Debenture shall not become obligatory for any purpose until it shall
have been certified by the Debenture Trustee under the Indenture.
Capitalized
words or expressions used in this Initial Debenture shall, unless otherwise
defined herein, have the meaning ascribed thereto in the Indenture.
IN
WITNESS WHEREOF ACCLAIM ENERGY
TRUST has caused this Debenture to be signed by its authorized
representatives as of the 17th
day of
December, 2002.
|
ACCLAIM
ENERGY TRUST, by
its attorney,
|
||
|
Acclaim
Energy Inc.
|
||
|
By:
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A-3
(FORM
OF DEBENTURE TRUSTEE'S CERTIFICATE)
This
Initial Debenture is one of the 11% Convertible Extendible Unsecured
Subordinated Debentures due March 31, 2003 (December 31, 2007, if
extended) referred to in the Indenture within mentioned.
COMPUTERSHARE
TRUST COMPANY OF CANADA
By:
(Authorized Officer)
(FORM
OF REGISTRATION PANEL)
(No
writing hereon except by Debenture Trustee or other registrar)
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Date
of Registration
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In
Whose Name Registered
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Signature
of Debenture Trustee or
Registrar
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A-4
FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________________, whose address and social insurance number,
if applicable, are set forth below, this Initial Debenture (or $______________
principal amount hereof*) of ACCLAIM ENERGY TRUST standing in the name(s) of
the
undersigned in the register maintained by the Trust with respect to such Initial
Debenture and does hereby irrevocably authorize and direct the Debenture Trustee
to transfer such Initial Debenture in such register, with full power of
substitution in the premises.
Dated:
_________________________________________________________________________________________________________________________________________________________
Address
of Transferee:
____________________________________________________________________________________________________________________________________________
(Xxxxxx
Xxxxxxx, Xxxx, Xxxxxxxx and
Postal Code)
Social
Insurance Number of Transferee, if applicable:
______________________________________________________________________________________________________________________
*If
less than the full principal amount of the within Initial Debenture is to be
transferred, indicate in the space provided the principal amount (which must
be
$1,000 or an integral multiple thereof, unless you hold an Initial Debenture
in
a non-integral multiple of 1,000 by reason of your having exercised your right
to exchange upon the making of an Offer, in which case such Initial Debenture
is
transferable only in its entirety) to be transferred.
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1.
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The
signature(s) to this assignment must correspond with the name(s)
as
written upon the face of this Initial Debenture in every particular
without alteration or any change whatsoever. The signature(s) must
be
guaranteed by a Canadian chartered bank or trust company or by a
member of
an acceptable Medallion Guarantee Program. Notarized or witnessed
signatures are not acceptable as guaranteed signatures. The Guarantor
must
affix a stamp bearing the actual words: "SIGNATURE GUARANTEED".
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2.
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The
registered holder of this Initial Debenture is responsible for the
payment
of any documentary, stamp or other transfer taxes that may be payable
in
respect of the transfer of this Debenture.
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Signature
of Guarantor:
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Authorized
Officer
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Signature
of transferring registered holder
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Name
of Institution
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A-5
EXHIBIT
"1"
TO
CDS GLOBAL DEBENTURE
ACCLAIM
ENERGY TRUST
11%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURES
DUE
MARCH 31, 2003 (DECEMBER 31, 2007, IF EXTENDED)
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Initial
Principal Amount: $45,000,000
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CUSIP: 00433
B AA 0
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Authorization: ________________________
ADJUSTMENTS
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Date
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Amount
of Increase
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Amount
of Decrease
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New
Principal Amount
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Authorization
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A-6
SCHEDULE
"B"
TO
THE TRUST INDENTURE AMONG
ACCLAIM
ENERGY TRUST, ACCLAIM ENERGY INC. AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
FORM
OF REDEMPTION NOTICE
SCHEDULE
"B"
Form
of Redemption Notice
ACCLAIM
ENERGY TRUST
11%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURES
REDEMPTION
NOTICE
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To:
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Holders
of 11% Convertible Extendible Unsecured Subordinated Debentures (the
"Debentures") of
Acclaim Energy Trust (the "Trust")
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All
capitalized terms used herein have the meaning ascribed thereto in
the
Indenture mentioned below, unless otherwise indicated.
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Notice
is hereby given pursuant to Section 4.3 of the trust indenture (the "Indenture") dated as of
December 17, 2002 among the Trust, Acclaim Energy Inc. and Computershare
Trust Company of Canada (the "Debenture Trustee"), that the
aggregate principal amount of $β’ of the $β’ of Debentures outstanding will be
redeemed as of β’ (the "Redemption Date"), upon
payment of a redemption amount of $β’ for each $1,000 principal amount of
Debentures, being equal to the aggregate of (i) $β’ (the "Redemption Price"), and
(ii) all accrued and unpaid interest hereon to but excluding the Redemption
Date (collectively, the "Total
Redemption Price").
The
Total Redemption Price will be payable upon presentation and surrender of the
Debentures called for redemption at the following corporate trust office:
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Computershare
Trust Company of Canada
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Xxxxx
000, 000 - 0xx Xxxxxx, XX
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Xxxxxxx
XX X0X 0X0
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The
interest upon the principal amount of Debentures called for redemption shall
cease to be payable from and after the Redemption Date, unless payment of the
Total Redemption Price shall not be made on presentation for surrender of such
Debentures at the above-mentioned corporate trust office on or after the
Redemption Date or prior to the setting aside of the Total Redemption Price
pursuant to the Indenture.
[Pursuant
to Section 4.6 of the Indenture, the Trust hereby irrevocably elects to
satisfy its obligation to pay $β’ of the Redemption Price payable to holders of
Debentures in accordance with this notice by issuing and delivering to the
holders that number of Freely Tradeable Trust Units obtained by dividing the
Redemption Price by 95% of the Current Market Price of the Trust Units.
No
fractional Trust Units shall be delivered upon the exercise by the Trust of
the
above-mentioned redemption right but, in lieu thereof, the Trust shall pay
the
cash equivalent thereof determined on the basis of the Current Market Price
of
Trust Units on the Redemption Date (less any tax required to be deducted, if
any).
In
this connection, upon presentation and surrender of the Debentures for payment
on the Redemption Date, the Trust shall, on the Redemption Date, make the
delivery to the Debenture Trustee, at the above-mentioned corporate trust
office, for delivery to and on account of the holders, of certificates
representing the Freely Tradeable Trust Units to which holders are entitled
together with the cash equivalent in lieu of fractional Trust Units, cash for
all accrued and unpaid interest up to, but excluding, the Redemption Date,
and,
if only a portion of the Debentures are to be redeemed by issuing Freely
Tradeable Trust Units, cash representing the balance of the Redemption
Price.]
DATED:
ACCLAIM
ENERGY TRUST, by its
attorney
Acclaim
Energy Inc.
_______________________________________________
(Authorized
Director or Officer of
Acclaim
Energy Inc.)
B-1
SCHEDULE
"C"
TO
THE TRUST INDENTURE AMONG
ACCLAIM
ENERGY TRUST, ACCLAIM ENERGY INC. AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
FORM
OF MATURITY NOTICE
SCHEDULE
"C"
Form
of Maturity Notice
ACCLAIM
ENERGY TRUST
11%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURES
MATURITY
NOTICE
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To:
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Holders
of 11% Convertible Extendible Unsecured Subordinated Debentures (the
"Debentures") of
Acclaim Energy Trust (the "Trust")
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All
capitalized terms used herein have the meaning ascribed thereto in
the
Indenture mentioned below, unless otherwise indicated.
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Notice
is hereby given pursuant to Section 4.10(b) of the trust indenture (the "Indenture") dated as of
December 17, 2002 among the Trust, Acclaim Energy Inc. and
Computershare Trust Company of Canada, as trustee (the "Debenture Trustee"), that the
Debentures are due and payable as of December 31, 2007 (the "Maturity Date") and the Trust
elects to satisfy its obligation to repay to holders of Debentures the principal
amount of all of the Debentures outstanding on the Maturity Date by issuing
and
delivering to the holders that number of Freely Tradeable Trust Units equal
to
the number obtained by dividing such principal amount of the Debentures by
95%
of the Current Market Price of Trust Units on the Maturity Date.
No
fractional Trust Units shall be delivered on exercise by the Trust of the above
mentioned repayment right but, in lieu thereof, the Trust shall pay the cash
equivalent thereof determined on the basis of the Current Market Price of Trust
Units on the Maturity Date (less any tax required to be deducted, if
any).
In
this connection, upon presentation and surrender of the Debentures for payment
on the Maturity Date, the Trust shall, on the Maturity Date, make delivery
to
the Debenture Trustee, at its principal corporate trust office in Calgary,
Alberta, for delivery to and on account of the holders, of certificates
representing the Freely Tradeable Trust Units to which holders are entitled
together with the cash equivalent in lieu of fractional Trust Units, cash for
all accrued and unpaid interest up to, but excluding, the Maturity Date and
if
only a portion of the Debentures are to be repaid by issuing Freely Tradeable
Trust Units, cash representing the balance of the principal amount and premium
(if any) due on the Maturity Date.
DATED:
ACCLAIM
ENERGY TRUST, by its
attorney
Acclaim
Energy Inc.
___________________________________________
(Authorized
Director or Officer of
Acclaim
Energy Inc.)
C-1
SCHEDULE
"D"
TO
THE TRUST INDENTURE AMONG
ACCLAIM
ENERGY TRUST, ACCLAIM ENERGY INC. AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
FORM
OF NOTICE OF CONVERSION
SCHEDULE
"D"
Form
of Notice of Conversion
CONVERSION
NOTICE
TO:
ACCLAIM ENERGY TRUST
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Note:
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All
capitalized terms used herein have the meaning ascribed thereto in
the
Indenture mentioned below, unless otherwise indicated.
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The
undersigned registered holder of 11% Convertible Extendible Unsecured
Subordinated Debentures bearing Certificate No. β’ irrevocably elects to convert
such Debentures (or $β’ principal amount thereof*) in accordance with the terms
of the Indenture referred to in such Debentures and tenders herewith the
Debentures, and, if applicable, directs that the Trust Units of Acclaim Energy
Trust issuable upon a conversion be issued and delivered to the person indicated
below. (If Trust Units are to be issued in the name of a person other than
the
holder, all requisite transfer taxes must be tendered by the
undersigned).
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Dated:
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(Signature
of Registered Holder)
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*
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If
less than the full principal amount of the Debentures, indicate in
the
space provided the principal amount (which must be $1,000 or integral
multiples thereof).
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NOTE:
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If
Trust Units are to be issued in the name of a person other than the
holder, the signature must be guaranteed by a chartered bank, a trust
company or by a member of an acceptable Medallion Guarantee Program.
The
Guarantor must affix a stamp bearing the actual words: "SIGNATURE
GUARANTEED".
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(Print
name in which Trust Units are to be issued, delivered and registered)
Name:
____________________________________
_________________________________________
(Address)
_________________________________________
(City,
Province and Postal Code)
Name
of guarantor:
Authorized
signature:
D-1
SCHEDULE
"E"
TO
THE TRUST INDENTURE AMONG
ACCLAIM
ENERGY TRUST, ACCLAIM ENERGY INC. AND
COMPUTERSHARE
TRUST COMPANY OF CANADA
FORM
OF DECLARATION FOR REMOVAL OF LEGEND
SCHEDULE
"E"
FORM
OF DECLARATION FOR REMOVAL OF LEGEND
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TO:
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Computershare
Trust Company of Canada, as trustee and registrar of the 11% Convertible
Extendible Unsecured Subordinated Debentures and Trust Units of Acclaim
Energy Trust
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The
undersigned (a) acknowledges that the sale of the securities of Acclaim
Energy Trust (the "Trust") to which this
declaration relates is being made in reliance on Rule 904 of
Regulation S under the United States Securities
Act of
1933, as amended (the "1933 Act") and
(b) certifies that (1) it is not an affiliate of the Trust (as defined
in Rule 405 under the 1933 Act), (2) the offer of such securities was
not made to a person in the United States, and either (A) at the time the
buy order was originated, the buyer was outside the United States, or the seller
and any person acting on its behalf reasonably believe that the buyer was
outside the United States, or (B) the transaction was executed on or
through the facilities of the Toronto Stock Exchange and neither the seller
nor
any person acting on its behalf knows that the transaction has been prearranged
with a buyer in the United States, (3) neither the seller nor any affiliate
of the seller nor any person acting on any of their behalf has engaged or will
engage in any directed selling efforts in the United States in connection with
the offer and sale of such securities, (4) the sale is bona fide and not
for the purpose of "washing off" the resale restrictions imposed because the
securities are "restricted securities" (as such term is defined in
Rule 144(a)(3) under the 1933 Act), (5) the seller does not intend to
replace the securities sold in reliance on Rule 904 of the 1933 Act with
fungible unrestricted securities, and (6) the contemplated sale is not a
transaction, or part of a series of transactions which, although in technical
compliance with Regulation S, is part of a plan or scheme to evade the
registration provisions of the 1933 Act. Terms used herein have the meanings
given to them by Regulation S.
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Dated:
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By:
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Name:
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Title:
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E-1
