TRUST INDENTURE DATED AS OF THE 27th DAY OF APRIL, 2005 BETWEEN VAULT ENERGY TRUST AND VAULT ACQUISITION INC. AND CANADIAN WESTERN TRUST COMPANY PROVIDING FOR THE ISSUE OF DEBENTURES
Β
Exhibit
99.1
Β
Β
DATED
AS OF THE 27th
DAY OF
APRIL, 2005
Β
BETWEEN
Β
VAULT
ENERGY TRUST
Β
AND
Β
VAULT
ACQUISITION INC.
Β
AND
Β
CANADIAN
WESTERN TRUST COMPANY
Β
PROVIDING
FOR THE ISSUE OF DEBENTURES
Β
Β
Β
TABLE
OF CONTENTS
| Β | Β | Β | Β |
| Β | Β | Β |
Page
|
| Β | Β | Β | Β |
|
ARTICLE
1
|
INTERPRETATION
|
8
|
|
| Β |
1.1
|
Definitions
|
8
|
| Β |
1.2
|
Meaning
of "Outstanding"
|
15
|
| Β |
1.3
|
Interpretation
|
15
|
| Β |
1.4
|
Headings
Etc
|
16
|
| Β |
1.5
|
Day
not a Business Day
|
16
|
| Β |
1.6
|
Applicable
Law
|
16
|
| Β |
1.7
|
Monetary
References
|
16
|
| Β |
1.8
|
Invalidity,
Etc
|
16
|
| Β |
1.9
|
Language
|
16
|
| Β |
1.10
|
Successors
and Assigns
|
17
|
| Β |
1.11
|
Benefits
of Indenture
|
17
|
| Β |
1.12
|
References
to Acts of the Trust
|
17
|
| Β | Β | Β | Β |
|
ARTICLE
2
|
THE
DEBENTURES
|
17
|
|
| Β |
2.1
|
Limit
of Debentures
|
17
|
| Β |
2.2
|
Terms
of Debentures of any Series
|
17
|
| Β |
2.3
|
Form
of Debentures
|
19
|
| Β |
2.4
|
Form
and Terms of Initial Debentures
|
19
|
| Β |
2.5
|
Certification
and Delivery of Additional Debentures
|
25
|
| Β |
2.6
|
Issue
of Global Debentures
|
26
|
| Β |
2.7
|
Execution
of Debentures
|
27
|
| Β |
2.8
|
Certification
|
27
|
| Β |
2.9
|
Interim
Debentures or Certificates
|
28
|
| Β |
2.10
|
Mutilation,
Loss, Theft or Destruction
|
28
|
| Β |
2.11
|
Concerning
Interest
|
29
|
| Β |
2.12
|
Debentures
to Rank Pari Passu
|
29
|
| Β |
2.13
|
Payments
of Amounts Due on Maturity
|
29
|
| Β |
2.14
|
U.S.
Legend on the Debentures
|
30
|
| Β |
2.15
|
Payment
of Interest
|
33
|
| Β | Β | Β | Β |
|
ARTICLE
3
|
REGISTRATION,
TRANSFER, EXCHANGE AND OWNERSHIP
|
34
|
|
| Β |
3.1
|
Fully
Registered Debentures
|
34
|
| Β |
3.2
|
Global
Debentures
|
34
|
| Β |
3.3
|
Transferee
Entitled to Registration
|
37
|
| Β |
3.4
|
No
Notice of Trusts
|
37
|
| Β |
3.5
|
Registers
Open for Inspection
|
37
|
| Β |
3.6
|
Exchanges
of Debentures
|
37
|
| Β |
3.7
|
Closing
of Registers
|
38
|
| Β |
3.8
|
Charges
for Registration, Transfer and Exchange
|
38
|
Β
-
i
-
Β
TABLE
OF CONTENTS
(continued)
| Β | Β | Β |
Page
|
| Β | Β | Β | Β |
| Β | Β | Β | Β |
| Β |
3.9
|
Ownership
of Debentures
|
39
|
| Β | Β | Β | Β |
|
ARTICLE
4
|
REDEMPTION
AND PURCHASE OF DEBENTURES
|
40
|
|
| Β |
4.1
|
Applicability
of Article
|
40
|
| Β |
4.2
|
Partial
Redemption
|
40
|
| Β |
4.3
|
Notice
of Redemption
|
41
|
| Β |
4.4
|
Debentures
Due on Redemption Dates
|
42
|
| Β |
4.5
|
Deposit
of Redemption Monies or Units
|
42
|
| Β |
4.6
|
Right
to Repay Redemption Price in Units
|
42
|
| Β |
4.7
|
Failure
to Surrender Debentures Called for Redemption
|
45
|
| Β |
4.8
|
Cancellation
of Debentures Redeemed
|
46
|
| Β |
4.9
|
Purchase
of Debentures by the Trust
|
46
|
| Β |
4.10
|
Right
to Repay Principal Amount in Units
|
47
|
| Β | Β | Β | Β |
|
ARTICLE
5
|
SUBORDINATION
OF DEBENTURES
|
50
|
|
| Β |
5.1
|
Applicability
of Article
|
50
|
| Β |
5.2
|
Definition
|
50
|
| Β |
5.3
|
Order
of Payment
|
50
|
| Β |
5.4
|
Subrogation
to Rights of Holders of Senior Indebtedness
|
52
|
| Β |
5.5
|
Obligation
to Pay Not Impaired
|
52
|
| Β |
5.6
|
No
Payment if Senior Indebtedness in Default
|
53
|
| Β |
5.7
|
Payment
on Debentures Permitted
|
53
|
| Β |
5.8
|
Confirmation
of Subordination
|
53
|
| Β |
5.9
|
Knowledge
of Debenture Trustee
|
54
|
| Β |
5.10
|
Debenture
Trustee May Hold Senior Indebtedness
|
54
|
| Β |
5.11
|
Rights
of Holders of Senior Indebtedness Not Impaired
|
54
|
| Β |
5.12
|
Altering
the Senior Indebtedness
|
54
|
| Β |
5.13
|
Additional
Indebtedness
|
54
|
| Β |
5.14
|
Right
of Debentureholder to Convert Not Impaired
|
55
|
| Β |
5.15
|
Invalidated
Payments
|
55
|
| Β |
5.16
|
Contesting
Security
|
55
|
| Β | Β | Β | Β |
|
ARTICLE
6
|
CONVERSION
OF DEBENTURES
|
55
|
|
| Β |
6.1
|
Applicability
of Article
|
55
|
| Β |
6.2
|
Notice
of Expiry of Conversion Privilege
|
55
|
| Β |
6.3
|
Revival
of Right to Convert
|
56
|
| Β |
6.4
|
Manner
of Exercise of Right to Convert
|
56
|
| Β |
6.5
|
Adjustment
of Conversion Price
|
57
|
| Β |
6.6
|
No
Requirement to Issue Fractional Units
|
61
|
| Β |
6.7
|
Trust
to Reserve Units
|
62
|
Β
-
ii
-
Β
TABLE
OF CONTENTS
(continued)
| Β | Β | Β |
Page
|
| Β | Β | Β | Β |
| Β |
6.8
|
Cancellation
of Converted Debentures
|
62
|
| Β |
6.9
|
Certificate
as to Adjustment
|
62
|
| Β |
6.10
|
Notice
of Special Matters
|
62
|
| Β |
6.11
|
Protection
of Debenture Trustee
|
63
|
| Β |
6.12
|
U.S.
Legend on Units
|
63
|
| Β | Β | Β | Β |
|
ARTICLE
7
|
COVENANTS
OF THE TRUST
|
63
|
|
| Β |
7.1
|
To
Pay Principal and Interest
|
63
|
| Β |
7.2
|
To
Carry Out This Indenture
|
64
|
| Β |
7.3
|
To
Pay Debenture Trustee's Remuneration
|
64
|
| Β |
7.4
|
To
Give Notice of Default
|
64
|
| Β |
7.5
|
To
Carry on Business
|
64
|
| Β |
7.6
|
Keeping
of Books
|
64
|
| Β |
7.7
|
Annual
Certificate of Compliance
|
64
|
| Β |
7.8
|
To
Provide Financial Statements
|
65
|
| Β |
7.9
|
Not
to Extend Time for Payment of Interest or Principal
|
65
|
| Β |
7.10
|
Debenture
Trustee May Perform Covenants
|
65
|
| Β |
7.11
|
Listing
|
66
|
| Β |
7.12
|
No
Distributions on Units if Event of Default
|
66
|
| Β |
7.13
|
Taxation
|
66
|
| Β |
7.14
|
Issuance
Test
|
66
|
| Β | Β | Β | Β |
|
ARTICLE
8
|
DEFAULT
|
67
|
|
| Β |
8.1
|
Events
of Default
|
67
|
| Β |
8.2
|
Notice
of Events of Default
|
68
|
| Β |
8.3
|
Waiver
of Default
|
68
|
| Β |
8.4
|
Enforcement
by the Debenture Trustee
|
69
|
| Β |
8.5
|
No
Suits by Debentureholders
|
70
|
| Β |
8.6
|
Application
of Monies by Debenture Trustee
|
71
|
| Β |
8.7
|
Notice
of Payment by Debenture Trustee
|
72
|
| Β |
8.8
|
Debenture
Trustee May Demand Production of Debentures
|
72
|
| Β |
8.9
|
Remedies
Cumulative
|
72
|
| Β |
8.10
|
Judgment
Against the Trust
|
72
|
| Β |
8.11
|
Immunity
of Debenture Trustee and Others
|
73
|
| Β | Β | Β | Β |
|
ARTICLE
9
|
SATISFACTION
AND DISCHARGE
|
73
|
|
| Β |
9.1
|
Cancellation
and Destruction
|
73
|
| Β |
9.2
|
Non-Presentation
of Debentures
|
73
|
| Β |
9.3
|
Repayment
of Unclaimed Monies or Units
|
74
|
| Β |
9.4
|
Discharge
|
74
|
Β
-
iii
-
Β
TABLE
OF CONTENTS
(continued)
| Β | Β | Β |
Page
|
| Β | Β | Β | Β |
| Β |
9.5
|
Satisfaction
|
74
|
| Β |
9.6
|
Continuance
of Rights, Duties and Obligations
|
76
|
| Β | Β | Β | Β |
|
ARTICLE
10
|
SUCCESSORS
|
77
|
|
| Β |
10.1
|
Restrictions
on Merger and Sale of Certain Assets, etc
|
77
|
| Β |
10.2
|
Vesting
of Powers in Successor
|
78
|
| Β | Β | Β | Β |
|
ARTICLE
11
|
COMPULSORY
ACQUISITION
|
78
|
|
| Β |
11.1
|
Definitions
|
78
|
| Β |
11.2
|
Offer
for Debentures
|
79
|
| Β |
11.3
|
Offeror's
Notice to Dissenting Shareholders
|
79
|
| Β |
11.4
|
Delivery
of Debenture Certificates
|
79
|
| Β |
11.5
|
Payment
of Consideration to Debenture Trustee
|
80
|
| Β |
11.6
|
Consideration
to be held in Trust
|
80
|
| Β |
11.7
|
Completion
of Transfer of Debentures to Offeror
|
80
|
| Β |
11.8
|
Communication
of Offer to Trust
|
81
|
| Β | Β | Β | Β |
|
ARTICLE
12
|
MEETINGS
OF DEBENTUREHOLDERS
|
81
|
|
| Β |
12.1
|
Right
to Convene Meeting
|
81
|
| Β |
12.2
|
Notice
of Meetings
|
81
|
| Β |
12.3
|
Chairman
|
83
|
| Β |
12.4
|
Quorum
|
83
|
| Β |
12.5
|
Power
to Adjourn
|
83
|
| Β |
12.6
|
Show
of Hands
|
83
|
| Β |
12.7
|
Poll
|
84
|
| Β |
12.8
|
Voting
|
84
|
| Β |
12.9
|
Proxies
|
84
|
| Β |
12.10
|
Persons
Entitled to Attend Meetings
|
85
|
| Β |
12.11
|
Powers
Exercisable by Extraordinary Resolution
|
85
|
| Β |
12.12
|
Meaning
of "Extraordinary Resolution"
|
88
|
| Β |
12.13
|
Powers
Cumulative
|
89
|
| Β |
12.14
|
Minutes
|
89
|
| Β |
12.15
|
Instruments
in Writing
|
89
|
| Β |
12.16
|
Binding
Effect of Resolutions
|
90
|
| Β |
12.17
|
Evidence
of Rights Of Debentureholders
|
90
|
| Β |
12.18
|
Concerning
Serial Meetings
|
90
|
| Β | Β | Β | Β |
|
ARTICLE
13
|
NOTICES
|
90
|
|
| Β |
13.1
|
Notice
to Trust
|
90
|
| Β |
13.2
|
Notice
to Debentureholders
|
91
|
Β
-
iv
-
Β
TABLE
OF CONTENTS
(continued)
| Β | Β | Β |
Page
|
| Β | Β | Β | Β |
| Β |
13.3
|
Notice
to Debenture Trustee
|
91
|
| Β |
13.4
|
Mail
Service Interruption
|
91
|
| Β | Β | Β | Β |
|
ARTICLE
14
|
CONCERNING
THE DEBENTURE TRUSTEE
|
92
|
|
| Β |
14.1
|
No
Conflict of Interest
|
92
|
| Β |
14.2
|
Replacement
of Debenture Trustee
|
92
|
| Β |
14.3
|
Duties
of Debenture Trustee
|
93
|
| Β |
14.4
|
Reliance
Upon Declarations, Opinions, etc
|
93
|
| Β |
14.5
|
Evidence
and Authority to Debenture Trustee, Opinions, etc
|
93
|
| Β |
14.6
|
Officer's
Certificates Evidence
|
95
|
| Β |
14.7
|
Experts,
Advisers and Agents
|
95
|
| Β |
14.8
|
Debenture
Trustee May Deal in Debentures
|
95
|
| Β |
14.9
|
Investment
of Monies Held by Debenture Trustee
|
95
|
| Β |
14.10
|
Debenture
Trustee Not Ordinarily Bound
|
96
|
| Β |
14.11
|
Debenture
Trustee Not Required to Give Security
|
97
|
| Β |
14.12
|
Debenture
Trustee Not Bound to Act on Trust's Request
|
97
|
| Β |
14.13
|
Debenture
Trustee Not Appointed Receiver
|
97
|
| Β |
14.14
|
Conditions
Precedent to Debenture Trustee's Obligations to Act Hereunder
|
97
|
| Β |
14.15
|
Authority
to Carry on Business
|
97
|
| Β |
14.16
|
Compensation
and Indemnity
|
98
|
| Β |
14.17
|
Acceptance
of Trust
|
98
|
| Β | Β | Β | Β |
|
ARTICLE
15
|
SUPPLEMENTAL
INDENTURES
|
99
|
|
| Β |
15.1
|
Supplemental
Indentures
|
99
|
| Β |
15.2
|
Regulatory
Approvals
|
100
|
| Β | Β | Β | Β |
|
ARTICLE
16
|
EXECUTION
AND FORMAL DATE
|
100
|
|
| Β |
16.1
|
Execution
|
100
|
| Β |
16.2
|
Contracts
of the Trust
|
100
|
| Β |
16.3
|
Formal
Date
|
100
|
Β
-
v
-
Β
THIS
INDENTURE made as of the
27th
day of April, 2005.
Β
BETWEEN:
Β
VAULT
ENERGY TRUST, a trust
formed under the laws of the Province of Alberta (hereinafter called the "Trust")
Β
AND
Β
VAULT
ACQUISITION INC., a
corporation incorporated under the laws of the Province of Alberta (hereinafter
called the "AcquisitionCo")
Β
AND
Β
CANADIAN
WESTERN TRUST
COMPANY, a trust company existing under the laws of Canada having an
office in the City of Calgary, in the Province of Alberta (hereinafter called
the "Debenture
Trustee")
Β
WITNESSETH
THAT:
Β
WHEREAS
the Trust wishes to
create and issue the Debentures to be created and issued in the manner
hereinafter appearing in order to finance the acquisition of oil and natural
gas
properties;
Β
AND
WHEREAS Vault Acquisition
Inc. is duly authorized to sign instruments on behalf of the Trust;
Β
AND
WHEREAS the Trust, under
the laws relating thereto, is duly authorized to create and issue the Debentures
to be issued as herein provided;
Β
AND
WHEREAS all necessary
steps in relation to the Trust have been duly enacted, passed and/or confirmed
and other proceedings taken and conditions complied with to make the creation
and issue of the Debentures proposed to be issued hereunder, when certified
by
the Debenture Trustee and issued as provided in this Indenture, legal, valid
and
binding on the Trust in accordance with the laws relating to the Trust;
Β
AND
WHEREAS the foregoing
recitals are made as representations and statements of fact by the Trust and
not
by the Debenture Trustee;
Β
NOW
THEREFORE it is hereby
covenanted, agreed and declared as follows:
Β
-
6
-
Β
Β
Β
Β
ARTICLE
1
INTERPRETATION
Β
1.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Definitions
Β
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:
Β
|
Β
|
(a)
|
"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;
|
Β
|
Β
|
(b)
|
"AcquisitionCo"
means
Vault Acquisition Inc., in its own capacity;
|
Β
|
Β
|
(c)
|
"Administrator"
means
Vault Acquisition Inc., in its capacity as the administrator of the
Trust;
|
Β
|
Β
|
(d)
|
"Applicable
Securities
Legislation" means applicable securities laws (including rules,
regulations, policies and instruments) in each of the provinces of
Canada;
|
Β
|
Β
|
(e)
|
Β
|
Β
|
(f)
|
"Arrangement
Agreement"
means the arrangement agreement to be entered into between, among
others,
Chamaelo Energy Inc., the Trust, Vault Acquisition Inc., and 1166554
Alberta Inc.;
|
Β
|
Β
|
(g)
|
"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;
|
Β
|
Β
|
(h)
|
"Borrowed
Money" means,
in respect of the Trust or any Subsidiary of the Trust, all of such
Person's indebtedness, obligations and liabilities in respect of:
|
Β
|
Β
|
(i)
|
borrowed
money;
|
Β
|
Β
|
(ii)
|
bonds,
debentures, notes or other similar instruments;
|
Β
|
Β
|
(iii)
|
commercial
paper, bankers' acceptances, letters of credit, debt instruments,
bank
debt and financial leases, including reimbursement obligations in
respect
thereof;
|
Β
|
Β
|
(iv)
|
swap,
hedge or other arrangements, the purposes of which is to mitigate
or
eliminate exposures to fluctuations in prices of commodities, rates
of
exchange of one currency for another, interest rates and similar
matters;
and
|
Β
-
7
-
Β
(v)Β Β Β Β Β Β Β Β Β Β Β
guarantees, indemnities and other assurances in respect of any of the
foregoing;
Β
|
Β
|
(i)
|
"Business
Day" means a
day which is not (i) a Saturday or Sunday or (ii) a day which is
a civic
or statutory holiday in the City of Calgary;
|
Β
|
Β
|
(j)
|
"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 662/3%
or
more of the outstanding Units, or securities convertible into or
carrying
the right to acquire 662/3%
or
more of the outstanding Units;
|
|
(k)
|
"Conversion
Price" means
the dollar amount for which each 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;
|
Β
|
Β
|
(l)
|
"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, acting reasonably;
|
Β
|
(m)
|
"Current
Market Price"
means the weighted average trading price per unit for Units for the
20
consecutive trading days ending on the fifth trading day preceding
the
date of determination on the Toronto Stock Exchange (or, if the Units
are
not listed thereon, on such stock exchange on which the Units are
listed
as may be selected for such purpose by the Trust, or if the Units
are not
listed on any stock exchange, then on the over-the-counter market,
or if
the Units are not listed or traded on any market, as determined in
good
faith for such purpose by the Trust). The weighted average price
shall be
determined by dividing the aggregate sale price of all 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 Units so sold;
|
Β
|
(n)
|
"Date
of Conversion" has
the meaning ascribed thereto in Section 6.4(b);
|
Β
|
(o)
|
"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;
|
Β
|
(p)
|
"Debentures"
means the
debentures, notes or other evidences of indebtedness of the Trust
issued
and certified hereunder, or deemed to be issued and certified hereunder,
including the Initial Debentures, and for the time being outstanding,
whether in definitive or interim form;
|
Β
|
(q)
|
"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
|
Β
-
8
-
Β
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 and, in the case of the Initial
Debentures, the Depository shall initially be the Canadian Depository for
Securities Limited ("CDS");
Β
|
(r)
|
"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;
|
Β
|
(s)
|
"Event
of Default" has
the meaning ascribed thereto in Section
8.1;Β
|
Β
|
(t)
|
"Extraordinary
Resolution" has the meaning ascribed thereto in Section
12.12;Β
|
Β
|
(u)
|
"Freely
Tradeable" means,
in respect of units of any class of any trust or shares of capital
of any
class of any corporation, units or shares, as the case may be, which
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;
|
Β
|
(v)
|
"Fully
Registered
Debentures" means Debentures registered as to both principal and
interest;
|
Β
|
(w)
|
"generally
accepted accounting
principles" means generally accepted accounting principles from
time to time approved by the Canadian Institute of Chartered Accountants;
|
Β
|
(x)
|
"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;
|
Β
|
(y)
|
"Government
Obligations"
means securities issued or guaranteed by the Government of Canada
or any
province thereof;
|
Β
|
Β
|
(z)
|
"Indenture",
"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;
|
Β
|
(aa)
|
"Initial
Debentures"
means the Debentures designated as "8% Convertible Unsecured Subordinated
Debentures" and described in Section 2.4;
|
Β
|
(bb)
|
"Interest
Account" means
an account established by the Trust (and which shall be maintained
by and
subject to the control of the Debenture Trustee) for the Debentures;
|
Β
-
9
-
Β
|
(cc)
|
"Interest
Obligation"
means the obligation of the Trust to pay interest on the Debentures,
as
and when the same becomes due;
|
Β
|
(dd)
|
"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;
|
Β
|
(ee)
|
"Legended
Debentures"
means Debentures bearing the U.S. Legend;
|
Β
|
(ff)
|
"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;
|
Β
|
(gg)
|
"Maturity
Date" has the
meaning ascribed thereto in Section 4.10(a);
|
Β
|
(hh)
|
"Maturity
Notice" has the
meaning attributed thereto in Section 2.4(f);
|
Β
|
(ii)
|
"Offer"
has the meaning
attributed thereto in Section 2.4(h)(i);
|
Β
|
(jj)
|
"Offer
Price" has the
meaning attributed thereto in Section 2.4(h)(i);
|
Β
|
(kk)
|
"Officer's
Certificate"
means a certificate of the Trust signed by any one authorized officer
or
director of the Administrator, on behalf of the Trust, in his or
her
capacity as an officer or director of the Administrator, and not
in his or
her personal capacity;
|
Β
|
(ll)
|
"Periodic
Offering" means
an offering of Debentures of a series from time to time, the specific
terms of which Debentures, including the rate or rates of interest,
if
any, thereon, the stated maturity or maturities thereof and the redemption
and conversion provisions, if any, with respect thereto, are to be
determined by the Trust in connection with the issuance of such Debentures
from time to time;
|
Β
|
(mm)
|
"Person"
includes an
individual, corporation, company, partnership, joint venture, association,
trust, trustee, unincorporated organization or government or any
agency or
political subdivision thereof;
|
Β
|
(nn)
|
"Publicly
Traded
Securities" means securities of a legal entity which are listed on
any stock exchange and are entitled to share without limitation in
a
distribution of the assets of the legal entity upon any liquidation,
dissolution or winding-up of the legal entity and includes any securities
convertible or exchangeable into such securities;
|
Β
|
(oo)
|
"Redemption
Date" has the
meaning attributed thereto in Section 4.3;
|
Β
|
(pp)
|
"Redemption
Notice" has
the meaning attributed thereto in Section 4.3;
|
Β
-
10 -
Β
|
(qq)
|
"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 Units as provided for in Section
4.6;
|
Β
|
(rr)
|
"Regulation
S" means
Regulation S adopted by the United States Securities and
|
|
Β
|
Exchange
Commission under the 1933 Act;
|
Β
|
(ss)
|
"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;
|
Β
|
(tt)
|
"Senior
Indebtedness"
means the principal of and interest on and other amounts in respect
of all
indebtedness for Borrowed Money, of the Trust (whether outstanding
at the
date of this Indenture or thereafter created, incurred, assumed or
guaranteed), which includes any indebtedness to trade creditors,
other
than indebtedness evidenced by all of the Debentures and all other
existing and future debentures and indebtedness which, by the terms
of the
contract or instrument creating or evidencing the indebtedness, or
pursuant to which the indebtedness is outstanding, is expressed to
be
pari passu with,
or subordinate in right of payment to, the Debentures;
|
Β
|
(uu)
|
"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;
|
Β
|
(vv)
|
"Series
D Subscription Receipts"
means the subscription receipts issued pursuant to an agreement
dated April 27, 2005 among the Trust, Valiant Trust Company, the
Debenture
Trustee and Orion Securities Inc. (on behalf on itself and GMP Securities
Inc., CIBC World Markets Inc, National Bank Financial Inc., Sprott
Securities Inc., TD Securities Inc., Trilon Securities Corporation
and
Tristone Capital Inc.);
|
Β
|
(ww)
|
"Subscription
Receipt Closing
Date" means the date of issuance of the Series D Subscription
Receipts;
|
Β
|
(xx)
|
"Subsidiary"
means any
legal entity of which more than 50% of the outstanding Voting Shares
are
owned, directly or indirectly, by or for the Trust, provided that
the
ownership of such Voting Shares confers the right to elect at least
a
majority of the board of directors of such legal entity and includes
any
legal entity in like relation to a Subsidiary; provided, however,
that for
the purpose of Sections 1.2 and 8.6 such term shall not include any
legal
entity which has Publicly Traded Securities;
|
Β
|
(yy)
|
"Time
of Expiry" has the
meaning attributed thereto in Section 2.4(e);
|
Β
|
(zz)
|
"Total
Offer Price" has
the meaning attributed thereto in Section 2.4(h)(i);
|
Β
-
11 -
Β
|
(aaa)
|
"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;
|
Β
|
(bbb)
|
"Trust"
means Vault
Energy Trust and includes any successor to or of the Trust which
shall
have complied with the provisions of Article 11 and for greater certainty,
the term "Trust" includes Vault Acquisition Inc., in its capacity
as the
administrator of the Trust;
|
Β
|
(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;
|
Β
|
(ddd)
|
"Trust's
Auditors" or
"Auditors of the
Trust" means an independent firm of chartered accountants duly
appointed as auditors of the Trust;
|
Β
|
(eee)
|
"Underwriters"
means,
collectively, Orion Securities Inc., GMP Securities Ltd., CIBC World
Markets Inc., National Bank Financial Inc., Sprott Securities Inc.,
TD
Securities Inc., Trilon Securities Corporation and Tristone Capital
Inc.;
|
Β
|
(fff)
|
"Units"
means units in
the Trust, as such units are constituted on the date of execution
and
delivery of this Indenture; provided that in the event of a change
or a
subdivision, revision, reduction, combination or consolidation thereof,
any reclassification, capital reorganization, consolidation, merger,
sale
or conveyance or liquidation, dissolution or winding-up or such other
similar transaction, 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, "Units" shall include
the
units or other securities or property resulting from such change,
subdivision, redivision, reduction, combination or consolidation,
reclassification, capital reorganization, consolidation, merger,
sale or
conveyance or liquidation, dissolution or winding-up or such other
similar
transaction;
|
Β
|
(ggg)
|
"Unit
Bid Request" means
a request for bids to purchase Units (to be issued by the Trust on
the
Unit Delivery Date) made by the Debenture Trustee, 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 Units
which,
together with the cash payments by the Trust in lieu of fractional
Units,
if any, are at least equal to the Interest Obligation;
|
Β
|
(hhh)
|
"Unit
Delivery Date"
means a date, not more than 90 days and not less than three Business
Days
prior to the applicable Interest Payment Date, upon which Units are
issued
by the Trust and delivered to the Debenture Trustee for sale pursuant
to
Unit Purchase Agreements;
|
Β
-
12 -
Β
|
(iii)
|
"Unit
Purchase Agreement"
means an agreement in customary form among the Trust, the Debenture
Trustee and the Persons making acceptable bids pursuant to a 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 Units are then listed;
|
Β
|
(jjj)
|
"Unit
Redemption Right"
has the meaning attributed thereto in Section 4.6(a);
|
Β
|
(kkk)
|
"Unit
Repayment Right"
has the meaning attributed thereto in Section 4.10(a);
|
Β
|
(lll)
|
"United
States" means the
United States of America, its territories and possessions, any state
of
the United States and the District of Columbia;
|
Β
|
(mmm)
|
"U.S.
Legend" has the
meaning attributed thereto in Section
2.14;
|
Β
|
(nnn)
|
"Voting
Shares" means:
|
Β
|
Β
|
(i)
|
in
respect of a corporation or limited liability company, shares of
any class
or equity ownership interests of such entity:
|
Β
|
Β
|
(A)
|
carrying
voting rights in all circumstances; or
|
Β
|
Β
|
(B)
|
which
carry the right to vote conditional on the happening of an event
if such
event shall have occurred and be continuing;
|
Β
provided
that subparagraph (B) above shall not include voting rights created solely
by
statute, such as those rights created pursuant to section 183(4) of the Business Corporations Act
(Alberta) as in effect on the date hereof;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β
in respect to a trust, trust units of the trust:
Β
|
Β
|
(A)
|
carrying
voting rights in all circumstances; or
|
Β
|
Β
|
(B)
|
which
carry the right to vote conditional on the happening of an event
if such
event shall have occurred and be continuing; and
|
Β
|
Β
|
(iii)
|
in
respect to a partnership, the partnership interests or partnership
units:
|
Β
|
Β
|
(A)
|
carrying
voting rights in all circumstances; or
|
Β
|
Β
|
(B)
|
which
carry the right to vote conditional on the happening of an event
if such
event shall have occurred and be continuing;
|
Β
|
(ooo)
|
"Written
Direction of the
Trust" means an instrument in writing signed by any one officer
or
trustee of the Trust; and
|
Β
|
(ppp)
|
"1933
Act" means the
United States
Securities
Act of 1933, as amended.
|
Β
-
13 -
Β
1.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Meaning of "Outstanding"
Β
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
or
monies and/or Units, as the case may be for the payment thereof shall have
been
set aside under Section 9.2, provided that:
Β
|
Β
|
(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;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(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:
|
Β
|
Β
|
(i)
|
for
the purpose of determining whether the Debenture Trustee shall be
protected in acting and 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 based solely on an Officer's
Certificate detailing the particulars and registrations of any Debentures
owned directly or indirectly, legally or equitably by the Trust or
any
Subsidiary shall be so disregarded;
|
Β
|
Β
|
(ii)
|
Debentures
so owned which have been pledged in good faith other than to the
Trust or
a Subsidiary 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; and
|
Β
|
Β
|
(iii)
|
Debentures
so owned shall not be disregarded if they are the only Debentures
outstanding.
|
Β
1.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Interpretation
Β
In
this Indenture:
Β
|
Β
|
(a)
|
words
importing the singular number or masculine gender shall include the
plural
number or the feminine or neuter genders, and vice versa;
|
Β
-
14 -
Β
|
Β
|
(b)
|
all
references to Articles, Sections, Subsections, Paragraphs, Subparagraphs,
Clauses and Schedules refer, unless otherwise specified, to articles,
sections, subsections, paragraphs and clauses of and schedules to
this
Indenture; and
|
Β
|
Β
|
(c)
|
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.
|
Β
1.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Headings Etc.
Β
The
division of this Indenture into Articles and Sections and other subdivisions,
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.
Β
1.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Day not a Business Day
Β
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.
Β
1.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Applicable Law
Β
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.
Β
1.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Monetary References
Β
Whenever
any amounts of money are referred to herein, such amounts shall be deemed to
be
in lawful money of Canada unless otherwise expressed.
Β
1.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Invalidity, Etc.
Β
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.
Β
1.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Language
Β
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.
Β
-
15 -
Β
1.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Successors and Assigns
Β
All
covenants and agreements in this Indenture by the Trust shall bind its
successors and assigns, whether expressed or not.
Β
1.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Benefits of Indenture
Β
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 16.2 and 8.11) the holders of Units, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Β
1.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
References to Acts of the
Trust
Β
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
or a
party to whom the trustee has delegated the authority to perform such
act.
Β
ARTICLE
2
THE
DEBENTURES
Β
2.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Limit of Debentures
Β
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.
Β
2.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Terms of Debentures of any
Series
Β
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:
Β
|
Β
|
(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;
|
Β
|
Β
|
(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);
|
Β
|
Β
|
(c)
|
the
date or dates on which the principal of the Debentures of the series is
payable;
|
Β
-
16 -
Β
|
(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;
|
Β
|
(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;
|
Β
|
(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;
|
Β
|
(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;
|
Β
|
(h)
|
if
other than denominations of $1,000 and any integral multiple thereof,
the
denominations in which Debentures of the series shall be issuable;
|
Β
|
(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;
|
Β
|
(j)
|
any
other events of default or covenants with respect to the Debentures
of the
series;
|
Β
|
(k)
|
whether
and under what circumstances the Debentures of the series will be
convertible into or exchangeable for securities of any Person;
|
Β
|
(l)
|
the
form and terms of the Debentures of the series;
|
Β
|
(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;
|
Β
-
17 -
Β
|
(n)
|
if
other than Canadian currency, the currency in which the Debentures
of the
series are issuable; and
|
Β
|
(o)
|
any
other terms of the Debentures of the series (which terms shall not
be
inconsistent with the provisions of this Indenture).
|
Β
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 the Administrator on behalf of the Trust, 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 the
Administrator on behalf of the Trust, Officer's Certificate or in an indenture
supplemental hereto.
Β
2.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Form of Debentures
Β
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 the Administrator on
behalf of the Trust (as set forth in a resolution of the directors of the
Administrator on behalf of the Trust or to the extent established pursuant
to,
rather than set forth in, a resolution of the directors of the Administrators
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 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 stock exchange or securities regulatory authority or to conform to
general usage, all as may be determined by the director or officer of the
Administrator executing such Debentures, as conclusively evidenced by their
execution of such Debentures.
Β
2.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Form and Terms of Initial
Debentures
Β
|
Β
|
(a)
|
The
first series of Debentures (the "Initial Debentures")
authorized for issue immediately is limited to an aggregate principal
amount of $55,000,000 with each Initial Debenture having a principal
amount of $1,000 and shall be designated as "8% Convertible Unsecured
Subordinated Debentures".
|
Β
|
Β
|
(b)
|
The
Initial Debentures shall be dated as of the effective date of the
Arrangement, shall mature on June 30, 2010 (subject to the earlier
conversion or redemption of the Initial Debentures) and shall bear
interest from the date of issuance of Series D Subscription Receipts
of at
the rate of 8% per annum, payable in arrears in equal semi-annual
payments
on June 30 and December 31 in each year, with interest on amounts
in
default at the same rate, compounded semi-annually.
|
Β
-
18 -
Β
|
(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 prior to June 30, 2008, except in the event of the satisfaction
of
certain conditions after a Change of Control has occurred as outlined
herein. Subsequent to June 30, 2008 and prior to July 1, 2009,
Debentureholders may cause the Trust to redeem the Initial Debentures
in
whole or in part from time to time by providing the Redemption Notice
at a
Redemption Price equal to $1,050 per Initial Debenture. In addition
thereto, at the time of redemption, the Trust shall pay to the holder
accrued and unpaid interest. On or after July 1, 2009 and prior to
the
Maturity Date for the Initial Debentures, Debentureholders may cause
the
Trust to redeem the Initial Debentures in whole or in part from time
to
time on by providing the Redemption Notice at a Redemption Price
equal to
$1,025 per Initial Debenture and, in addition thereto, at the time
of
redemption, the Trust shall pay to the holder accrued and unpaid
interest.
The Redemption Notice for the Initial Debentures shall be 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 Redemption Price of the Initial
Debentures to be redeemed either by cash or by issuing and delivering
to
the holders of such Initial Debentures, such number of Freely Tradeable
Units as is obtained by dividing the Redemption Price by 95% of the
Current Market Price determined on the Redemption Date. 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.
Should the Trust elect to exercise such option, it shall so specify
and
provide details by giving notice to the applicable Debentureholder.
|
Β
Notwithstanding
any other provisions of this Indenture, if an Initial Debenture is surrendered
for redemption on an Interest Payment Date or during the five preceding Business
Days, the Person or Persons entitled to receive Freely Tradeable Units in
respect of the Initial Debenture so submitted for redemption shall not become
the holder or holders of record of such Freely Tradeable Units until the
Business Day following such Interest Payment Date. For greater certainty, until
such time as such Person or Persons become the holder or holders of record
of
such Freely Tradeable Units, the Person or Persons remain entitled to receive
interest on the Interest Payment Date.
Β
|
(d)
|
The
Initial Debentures will be subordinated to the Senior Indebtedness
of the
Trust in accordance with the provisions of Article 5.
|
Β
|
(e)
|
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 when the register of the Debenture Trustee is open, prior
to the
close of business on the earlier of the Maturity Date and the last
Business Day immediately preceding the date for redemption of the
Initial
Debentures by providing the Redemption Notice (the earlier of which
will
be the "Time of Expiry" for the purposes of Article 6 in respect
of the
Initial Debentures), to convert any part, which is $1,000 or an
|
Β
-
19 -
Β
integral
multiple thereof, of the principal amount of such Initial Debenture into Units
at the Conversion Price in effect on the Date of Conversion.
Β
The
Conversion Price in effect on the date hereof for each Unit to be issued upon
the conversion of Initial Debentures shall be equal to $11.50 such that
approximately 87 Units shall be issued for each $1,000 principal amount of
Initial Debentures so converted. No adjustment in the number of Units to be
issued upon conversion will be made for distributions on Units issuable upon
conversion or for interest accrued on the Initial Debentures which are
surrendered for conversion; however, holders converting their Initial Debentures
will receive all interest which has accrued to but excluding the Date of
Conversion which has not been paid in cash. The Conversion Price applicable
to
and the 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.
Β
Notwithstanding
any other provisions of this Indenture, if a Debenture is surrendered for
conversion on an Interest Payment Date or during the five preceding Business
Days, the Person or Persons entitled to receive Units in respect of the
Debenture so surrendered for conversion shall not become the holder or holders
of record of such Units until the Business Day following such Interest Payment
Date. For greater certainty, until such time as such Person or Persons become
the holder or holders of record of such Units, the Person or Persons remain
entitled to receive interest on the Interest Payment Date.
Β
|
Β
|
(f)
|
On
maturity of the Initial Debentures, the Trust may, at its option
and
subject to the provisions 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
either by cash or by issuing and delivering to such holders of Initial
Debentures Freely Tradeable Units at 95% of their Current Market
Price
pursuant to the provisions of Section 4.10. Upon maturity, the Trust
shall
deliver a maturity notice (the "Maturity Notice") to the
Debenture Trustee and the holders of the Initial Debentures in the
form of
Schedule "C" and provide the necessary details.
|
Β
|
(g)
|
The
Initial Debentures shall be issued as Fully Registered Debentures
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 stock exchange or securities
regulatory authority or to conform with general usage, all as may
be
determined by the directors of the Administrator 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
|
Β
-
20 -
Β
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 the Administrator 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.
Β
The
Initial Debentures may be issued as Global Debentures.Β Β If that is the
case, the Global Debentures shall be registered in the name of the Depository
(or any nominee of the Depository). 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.
Β
|
(h)
|
Within
30 days following the occurrence of a Change of Control, and subject
to
the provisions and conditions of this Section, the Trust shall be
obligated to offer to purchase the Initial Debentures. The terms
and
conditions of such obligation are set forth below:
|
Β
|
Β
|
(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, if any, on such Initial Debentures up
to, but
excluding, the date of acquisition by the Trust or a related party
of such
Debentures which Offer shall, unless otherwise provided under Applicable
Securities Legislation, be open for acceptance thereof for a period
of not
less than 35 days and not more than 60 days and shall provide for
payment
to all Debentureholders who accept the Offer not later than the 30th
day after the making of the Offer (collectively, the "Total Offer Price").
|
Β
|
Β
|
(ii)
|
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").
|
Β
-
21 -
Β
|
(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:
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(B)
|
each
such holder must send their respective Initial Debentures, duly endorsed
for transfer, to the Debenture Trustee within 10 days after the sending
of
such notice; and
|
Β
|
Β
|
(C)
|
the
rights of such holder under the terms of the Initial Debentures and
this
Indenture cease to be 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.
|
Β
|
(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 through electronic transfer of funds
(provided that the Debenture Trustee must have received confirmation
of
receipt of such funds on or before such time) or, where permitted
by the
Debenture Trustee, with a certified cheque or bank draft or, where
permitted by a Debenture Trustee a cheque post-dated to the date
of expiry
of the Offer, for such amounts required under this subsection. 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 Total Offer Price to which they are entitled
on
the Trust's purchase or redemption.
|
Β
-
22 -
Β
|
Β
|
(v)
|
In
the event that one or more of such Initial Debentures being purchased
in
accordance with this subsection 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 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.
|
Β
|
Β
|
(vi)
|
Initial
Debentures for which holders have accepted the Offer and Initial
Debentures which the Trust has been caused to redeem in accordance
with
this subsection 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 subsection 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.
|
Β
|
Β
|
(vii)
|
In
case the holder of any Initial Debenture to be purchased or redeemed
in
accordance with this subsection 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 monies payable, or give such
receipt therefor, if any, as the Debenture Trustee may require, such
monies 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 monies 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 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 monies,
together with any accumulated interest thereon, if any, 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 uncontested letter of credit from
a
Canadian
|
Β
-
23 -
Β
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.
Β
|
Β
|
(viii)
|
Subject
to the provisions above related to Initial Debentures purchased in
part,
all Initial Debentures redeemed and paid under this subsection shall
forthwith be delivered to the Debenture Trustee and cancelled and
no
Initial Debentures shall be issued in substitution therefor.
|
Β
|
Β
|
(i)
|
The
Debenture Trustee shall be provided with the documents and instruments
referred to in Sections 2.5(a) through (e) with respect to the Initial
Debentures prior to the issuance of the Initial Debentures.
|
Β
2.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Certification and Delivery
of
Additional Debentures
Β
Subject
to Section 7.14, 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 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 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:
Β
|
Β
|
(a)
|
a
certified resolution of the directors of the Administrator on behalf
of
the Trust authorizing the certification and delivery of the principal
amount of such Debentures;
|
Β
|
Β
|
(b)
|
an
Officer's Certificate and/or executed supplemental indenture by or
pursuant to which the form and terms of such Additional Debentures
were
established;
|
Β
|
Β
|
(c)
|
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:
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(ii)
|
the
Debenture Trustee shall certify and deliver Additional Debentures
of such
series for original issue from time to time, in an aggregate principal
|
Β
-
24 -
Β
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;
Β
|
Β
|
(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
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(d)
|
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
|
Β
|
Β
|
(e)
|
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, 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.
|
Β
2.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Issue of Global
Debentures
Β
|
Β
|
(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:
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(ii)
|
be
delivered by the Debenture Trustee to such Depository or pursuant
to such
Depository's instructions; and
|
Β
|
Β
|
(iii)
|
bear
a legend substantially to the following effect:
|
Β
"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
Β
-
25 -
Β
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."
Β
|
Β
|
(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.
|
Β
2.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Execution of Debentures
Β
All
Debentures shall be signed (either manually or by facsimile signature) by any
one authorized director or officer of the Administrator 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.Β Β 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.
Β
2.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Certification
Β
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 as against the Trust that such Debenture so
certified is duly issued, is a valid obligation of the Trust and the holder
is
entitled to the benefits hereof.
Β
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 or as to the performance by the Trust of its obligations
under, this Indenture 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.
Β
-
26 -
Β
2.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Interim Debentures or
Certificates
Β
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 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, the costs of which shall be borne by the Trust, 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 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.
Β
2.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Mutilation, Loss, Theft or
Destruction
Β
In
case any of the Debentures issued hereunder shall become mutilated or be lost,
stolen or destroyed and in the absence of notice that such Debenture has been
acquired by a bona fide purchaser, 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. The new or substituted Debenture may have endorsed upon if the fact
that it is in replacement of a previous Debenture. 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.
Β
-
27 -
Β
2.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Concerning Interest
Β
|
Β
|
(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, (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 such
Debentures, in all cases, to and excluding the next Interest Payment
Date;
|
Β
|
Β
|
(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. 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.
|
Β
2.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debentures to Rank Pari
Passu
Β
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.
Β
2.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Payments of Amounts Due on
Maturity
Β
Except
as may otherwise be provided herein or 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
immediately prior to each Maturity Date for Debentures outstanding from time
to
time under this Indenture, the Trust shall have transferred funds by electronic
transfer of funds (provided the Debenture Trustee must have received
confirmation of receipt of such funds on or before such time) for deposit in
the
applicable Maturity Account in an amount sufficient to pay the cash amount
payable in respect of such Debentures (including the principal amount together
with any accrued and unpaid interest thereon less any tax required by law to
be
deducted), provided the Trust may elect to satisfy this requirement with the
consent of the Debenture
Β
-
28 -
Β
Trustee
by providing the Debenture Trustee with a cheque for such amounts required
under
this Section post-dated to the applicable Maturity Date or by delivery of a
certified cheque or bank draft. The Debenture Trustee, on behalf of the Trust,
will pay to each holder entitled to receive payment the principal amount of
and
accrued and unpaid interest on the Debenture, upon surrender of the Debenture
at
the principal office of 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.
Β
2.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
U.S. Legend on the
Debentures
Β
|
Β
|
(a)
|
The
Debentures and the Units issuable upon conversion thereof have not
been
and will not be registered under the 1933 Act. All Debentures and
Units
issuable upon conversion thereof issued and sold in the United States
in
reliance on Section 4(2) under the 1933 Act, as well as all Debentures
and
Units issuable upon conversion thereof issued in exchange for or
in
substitution of the foregoing securities, shall bear the following
legend
(the βU.S. Legend
1β):
|
Β
"THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT"). THE HOLDER
HEREOF, BY ACQUIRING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ISSUER
OF
THESE SECURITIES (THE "ISSUER") THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER, (B) OUTSIDE THE UNITED STATES
IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, IF
AVAILABLE, OR (C) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER
THE
U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT,
IN
THE CASE OF TRANSFERS PURSUANT TO THE FOREGOING CLAUSE (C), THE TRANSFEROR
SHALL
HAVE FURNISHED TO THE ISSUER A WRITTEN OPINION OF COUNSEL OF RECOGNIZED STANDING
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.Β Β DELIVERY OF THIS CERTIFICATE MAY NOT
CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES
IN
CANADA.Β Β IF, AT ANY TIME THE ISSUER IS A "FOREIGN ISSUER" AS DEFINED
IN REGULATION S UNDER THE U.S. SECURITIES ACT, THESE SECURITIES ARE BEING SOLD
IN COMPLIANCE WITH
Β
-
29 -
Β
RULE
904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, A NEW CERTIFICATE BEARING
NO
LEGEND, DELIVERY OF WHICH WILL CONSTITUTE "GOOD DELIVERY," MAY BE OBTAINED
FROM
THE ISSUERβS TRANSFER AGENT UPON DELIVERY OF THIS CERTIFICATE AND A DULY
EXECUTED DECLARATION, IN A FORM SATISFACTORY TO THE ISSUERβS TRANSFER AGENT AND
THE ISSUER, TO THE EFFECT THAT THE SALE OF THE SECURITIES REPRESENTED HEREBY
IS
BEING MADE IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES
ACT."
Β
provided,
that if, at the time the Trust is a "foreign issuer" as defined in Regulation
S
under the 1933 Act, the Debentures or the Units issuable upon conversion thereof
are being sold in compliance with the requirements of Rule 904 of Regulation
S
under the 1933 Act, as referred to above, and in compliance with Canadian local
laws and regulations, the U.S. Legend 1 may be removed by providing the transfer
agent for such Debentures or Units issuable upon conversion thereof with such
certificate and a duly executed declaration in a form satisfactory to such
issuer and to the Trust's transfer agent; and provided further, that, if any
of
the Debentures or Units issuable upon conversion thereof are being sold pursuant
to Rule 144(k) of the 1933 Act, the U.S. Legend 1 may be removed by delivery
to
the transfer agent for such securities of an opinion of counsel of recognized
standing in form and substance satisfactory to the Trust, to the effect that
the
U.S. Legend 1 is no longer required under applicable requirements of the 1933
Act or state securities laws.
Β
|
Β
|
(b)
|
The
Debentures and the Units issuable upon conversion thereof have not
been
and will not be registered under the 1933 Act. All Debentures and
the
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 Units issuable upon conversion thereof issued
in
exchange for or in substitution of the foregoing securities, shall
bear,
unless otherwise directed by the Trust, the following legend (the
"U.S. Legend 2" and
together with U.S. Legend 1, the "U.S. Legend" or "U.S.
Legends", as
applicable):
|
Β
"THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT"). THE HOLDER
HEREOF, BY ACQUIRING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ISSUER
OF
THESE SECURITIES (THE "ISSUER") THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER, (B) OUTSIDE THE UNITED STATES
IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, IF
AVAILABLE, (C) IN
Β
-
30 -
Β
ACCORDANCE
WITH RULE 144A UNDER THE U.S. SECURITIES ACT TO A PERSON IT REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT
THE
OFFER, SALE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) IN A
TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT
OR
ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT, IN THE CASE OF TRANSFERS
PURSUANT TO THE FOREGOING CLAUSE (D), THE TRANSFEROR SHALL HAVE FURNISHED TO
THE
ISSUER A WRITTEN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.Β Β DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE "GOOD
DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN
CANADA.Β Β IF, AT ANY TIME THE ISSUER IS A "FOREIGN ISSUER" AS DEFINED
IN REGULATION S UNDER THE U.S. SECURITIES ACT, THESE SECURITIES ARE BEING SOLD
IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT,
A NEW
CERTIFICATE BEARING NO LEGEND, DELIVERY OF WHICH WILL CONSTITUTE "GOOD
DELIVERY," MAY BE OBTAINED FROM THE ISSUERβS TRANSFER AGENT UPON DELIVERY OF
THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN A FORM SATISFACTORY TO
THE
ISSUERβS TRANSFER AGENT AND THE ISSUER, TO THE EFFECT THAT THE SALE OF THE
SECURITIES REPRESENTED HEREBY IS BEING MADE IN COMPLIANCE WITH RULE 904 OF
REGULATION S UNDER THE U.S. SECURITIES ACT."
Β
provided,
that if, at the time the Trust is a "foreign issuer" as defined in Regulation
S
under the 1933 Act, the Debentures and Units issuable upon conversion thereof
are being sold in compliance with the requirements of Rule 904 of Regulation
S
under the 1933 Act, as referred to above, and in compliance with Canadian local
laws and regulations, the U.S. Legend 2 may be removed by providing the transfer
agent for such securities with such certificate and a duly executed declaration
in a form satisfactory to such issuer and to the Trustβs transfer agent; and
provided further, that, if any of the Debentures or Units issuable upon
conversion thereof are being sold pursuant to Rule 144(k) of the 1933 Act,
the
U.S. Legend 2 may be removed by delivery to the transfer agent for such
securities of an opinion of counsel of recognized standing in form and substance
satisfactory to the Trust, to the effect that the U.S. Legend 2 is no
Β
-
31 -
Β
longer
required under applicable requirements of the 1933 Act or state securities
laws.
Β
|
Β
|
(c)
|
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 1 or the U.S. Legend 2.
|
Β
The
Debenture Trustee will thereafter maintain a list of all registered holders
from
time to time of Legended Debentures.
Β
2.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Payment of Interest
Β
The
following provisions shall apply to Debentures, except as otherwise specified
in
a resolution of the directors of the Administrator on behalf of the Trust,
an
Officer's Certificate or a supplemental indenture relating to a particular
series of Additional Debentures:
Β
|
Β
|
(a)
|
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
fifth
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 receipt of funds prior to being able 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 or the Debenture
Trustee 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
|
Β
-
32 -
Β
Debenture
Trustee with the same effect as though payment had been made in the manner
provided above.
Β
|
Β
|
(b)
|
Notwithstanding
the preceding subsection, if a series of Debentures is represented
by a
Global Debenture, then all payments of interest on the Global Debenture
shall be made by electronic funds transfer or cheque 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.
|
Β
ARTICLE
3
REGISTRATION,
TRANSFER, EXCHANGE AND OWNERSHIP
Β
3.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Fully Registered
Debentures
Β
|
Β
|
(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, Alberta 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.
|
Β
|
Β
|
(b)
|
No
transfer of a Fully Registered Debenture shall be valid unless made
on
such register referred to in this Section 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.
|
Β
3.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Global Debentures
Β
|
Β
|
(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, Alberta and
by the
Debenture Trustee
|
Β
-
33 -
Β
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.
Β
|
Β
|
(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 except
in
the following circumstances or as otherwise specified in a resolution
of
the directors of the Administrator on behalf of the Trust, Officer's
Certificate or supplemental indenture relating to a particular series
of
Additional Debentures:
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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 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;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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 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 Depository
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;
|
Β
|
Β
|
(v)
|
Global
Debentures may be transferred if required by applicable law; or
|
Β
-
34 -
Β
|
Β
|
(vi)
|
Global
Debentures may be transferred if the book-entry only registration
system
ceases to exist.
|
Β
|
Β
|
(c)
|
With
respect to the Global Debentures, unless and until definitive certificates
have been issued to Beneficial Holders pursuant to subsection 3.2(b):
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(iii)
|
the
Depository will make book entry transfers among the Depository
Participants; and
|
Β
|
Β
|
(iv)
|
whenever
this Indenture requires or permits actions to be taken based upon
instructions 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
Participants, and has delivered such instructions to the Debenture
Trustee.
|
Β
|
Β
|
(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, 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 Applicable
Securities Legislation. 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.
|
Β
|
Β
|
(e)
|
Notwithstanding
any other provision of this Indenture, Debentures issued to any person
who
was offered, or who bought, Debentures in the United States shall
be
certificated. For greater certainty, this subsection shall also be
applicable to any
|
Β
-
35 -
Β
interim
or temporary Debentures or interim certificates issued pursuant to Section
2.9
hereof.
Β
3.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Transferee Entitled to
Registration
Β
The
transferee of a Debenture shall be entitled, after the appropriate form of
transfer is lodged with the Debenture Trustee and any certificate representing
such Debenture is surrendered to 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.
Β
3.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
No Notice of Trusts
Β
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.
Β
3.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Registers Open for
Inspection
Β
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.
Β
3.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Exchanges of Debentures
Β
|
Β
|
(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.
|
Β
|
Β
|
(b)
|
In
respect of exchanges of Debentures permitted by the preceding subsection;
Debentures of any series may be exchanged only at the principal offices
of
the Debenture Trustee in the city of Calgary, Alberta 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
|
Β
-
36 -
Β
Debenture
Trustee shall certify all Debentures necessary to carry out exchanges as
aforesaid. All Debentures surrendered for exchange shall be cancelled.
Β
|
Β
|
(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.
|
Β
3.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Closing of Registers
Β
(a)Β Β Β Β Β Β Β Β Β Β Β
Neither the Trust nor the Debenture Trustee nor any registrar shall be required
to:
Β
|
Β
|
(i)
|
make
transfers or exchanges of, or convert any Fully Registered Debentures
on
any Interest Payment Date for such Debentures or during the five
preceding
Business Days;
|
Β
|
Β
|
(ii)
|
make
transfers or exchanges of, or convert any Debentures on the day of
any
selection by the Debenture Trustee of Debentures to be redeemed or
until
the date on which the notice of redemption is sent by the Debenture
Trustee; or
|
Β
|
Β
|
(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.
|
Β
|
Β
|
(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, Alberta, 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.
|
Β
3.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Charges for Registration,
Transfer and Exchange
Β
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 (such amounts to
be
agreed upon from time to time by the Debenture Trustee and the Trust); 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.Β Β Notwithstanding the foregoing provisions, no charge shall be
made to a Debentureholder hereunder:
Β
|
Β
|
(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
|
Β
-
37 -
Β
Periodic
Offering, within a period of two months from the date of delivery of any such
Debenture;
Β
|
Β
|
(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;
|
Β
(c)Β Β Β Β Β Β Β Β Β Β Β
for any exchange of a Global Debenture as contemplated in Section 3.2; or
Β
(d)Β Β Β Β Β Β Β Β Β Β Β
for any exchange of any Debenture resulting from a partial redemption under
Section 4.2.
Β
3.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Ownership of Debentures
Β
|
Β
|
(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 the Trust and the Debenture
Trustee will not be affected by any notice or knowledge to the contrary
except as required by statute or by order of a court of competent
jurisdiction, and payment of or on account of the principal of such
Debenture and interest thereon shall be made to such registered holder.
|
Β
|
Β
|
(b)
|
Neither
the Trust nor the Underwriters shall have any liability for: (i)
any
aspect of the records relating to the beneficial ownership of the
Debentures held by CDS (or any successor thereof) or the payments
relating
thereto; or (ii) maintaining, supervising or reviewing any records
relating to the Debentures. The rules governing CDS provide that
it acts
as the agent and depository for participants of CDS. As a result,
such
participants must look solely to CDS and beneficial holders must
look
solely to participants of CDS for the payment of principal and interest
on
the Debentures paid by or on behalf of the Trust to CDS.
|
Β
|
Β
|
(c)
|
Holders
(i) may not have Debentures registered in their name; (ii) may not
have
physical certificates representing their interest in the Debentures;
(iii)
may not be able to sell the Debentures to institutions required by
law to
hold certificates for securities they own; and (iv) may be unable
to
pledge Debentures as security.
|
Β
|
Β
|
(d)
|
The
registered holder for the time being of any registered Debenture
shall be
entitled to the principal 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 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.
|
Β
|
Β
|
(e)
|
Where
Debentures are registered in more than one name, the principal 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
|
Β
-
38 -
Β
any
one of such holders therefor shall be a valid discharge, to the Debenture
Trustee, any registrar and to the Trust.
Β
|
Β
|
(f)
|
In
the case of the death of one or more joint holders of any Debenture
the
principal 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.
|
Β
ARTICLE
4
REDEMPTION
AND PURCHASE OF DEBENTURES
Β
4.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Applicability of Article
Β
Subject
to regulatory approval, the Debentureholder shall have the right at its option
to cause the Trust to redeem, either in whole at any time or in part from time
to time before the Maturity Date, either by payment of money, by issuance of
Freely Tradeable 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 such as those contained in Section 2.4(c)) at such
rate 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.
Β
Subject
to regulatory approval, the Trust shall have the right at its option to repay,
either in whole or in part, on the Maturity Date, either by payment of money
in
accordance with Section 2.13, by issuance of Freely Tradeable 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 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.
Β
4.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Partial Redemption
Β
If
less than all the Debentures of any series for the time being outstanding are
at
any time to be redeemed, or if a portion of the Debentures being redeemed are
being redeemed for cash and a portion of such Debentures are being redeemed
by
the payment of Freely Tradeable Units pursuant to Section 4.6, 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, subject to the approval
Β
-
39 -
Β
of
the Toronto Stock Exchange, as may be required from time to time. 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 in part or for redemption in cash 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 or for cash
only.Β Β 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.
Β
4.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice of Redemption
Β
Notice
of redemption (the "Redemption
Notice") of any series of Debentures shall be given by the
debentureholder who wishes to have part or all of its Debentures
redeemedΒ Β to the Trust in the manner provided in Section
13.1.Β Β The date fixed for the redemption shall be a date identified in
the Redemption Notice and shall be a date not more than 60 days nor less than
30
days after the date of the Redemption Notice (the "Redemption
Date").Β Β 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 accrue
and be payable from and after the Redemption Date. In addition, unless all
the
outstanding Debentures are to be redeemed, the Redemption Notice shall
specify:
Β
|
Β
|
(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);
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(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.
|
Β
-
40 -
Β
In
the event that all Debentures to be redeemed are registered Debentures,
publication shall not be required.
Β
4.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debentures Due on Redemption
Dates
Β
Upon
notice having been given as aforesaid, all the Debentures subject to the
Redemption Notice shall thereupon be and become due and payable at the
Redemption Price, together with accrued interest to but excluding the Redemption
Date (less any taxes required to be deducted or withheld), on the Redemption
Date specified in such notice, in the same manner and with the same effect
as if
it were the Maturity Date 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 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.
Β
4.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Deposit of Redemption Monies
or
Units
Β
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 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 unless otherwise required by the Debenture
Trustee, in which case the Trust shall satisfy this requirement by providing
the
Debenture Trustee with such funds through electronic transfer of funds or,
where
permitted by the Debenture Trustee, a certified cheque or bank draft on the
Business Day immediately prior 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 and interest (if any) to which they are respectively entitled on
redemption.
Β
4.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Right to Repay Redemption
Price
in Units
Β
|
Β
|
(a)
|
Subject
to the other provisions of this Section, the Trust may, at its option,
in
exchange for or in lieu of paying the Redemption Price in money,
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 Units obtained by dividing the Redemption Price
by 95% of
the then Current
|
Β
-
41 -
Β
Market
Price of the Units on the Redemption Date (the "Unit Redemption
Right").
Β
|
Β
|
(b)
|
The
Trust shall exercise the Unit Redemption Right by written 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 Redemption
Date. The Redemption Notice shall also specify the aggregate principal
amount of Debentures in respect of which it is exercising the Unit
Redemption Right.
|
Β
|
Β
|
(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:
|
Β
|
Β
|
(i)
|
the
issuance of the Units on the exercise of the Unit Redemption Right
shall
be made in accordance with Applicable Securities Legislation and
such
Units shall be issued as Freely Tradeable Units;
|
Β
|
Β
|
(ii)
|
the
listing of such additional Freely Tradeable Units on each stock exchange
on which the Units are then listed;
|
Β
|
Β
|
(iii)
|
the
Trust being a reporting issuer in good standing under Applicable
Securities Legislation where the distribution of such Freely Tradeable
Units occurs;
|
Β
|
Β
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
Β
|
Β
|
(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 Units to be delivered for each $1,000 principal
amount
of Debentures and the Current Market Price of the Units on the Redemption
Date; and
|
Β
|
Β
|
(vi)
|
the
receipt by the Debenture Trustee of an opinion of Counsel to the
effect
that such 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.
|
Β
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 or
the
Debenture Trustee waives the conditions which are not satisfied.
Β
-
42 -
Β
|
(d)
|
In
the event that the Trust duly exercises its Unit Redemption Right,
the
Trust shall on or before 11:00 a.m. (Calgary time) on the Redemption
Date,
deliver to the Debenture Trustee, for delivery to and on account
of the
holders, upon the due presentation and surrender of the Debentures,
the
Freely Tradeable Units to which such holders are entitled.
|
Β
|
(e)
|
No
fractional Freely Tradeable 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 preceding subsection, the cash equivalent thereof determined by
the
Trust on the basis of the Current Market Price of the Units on the
Redemption Date (less any tax required to be deducted, if any). Upon
request by the Debenture Trustee, the Trust shall provide, in writing
to
the Debenture Trustee, the price to be paid in respect of such fractional
Units.
|
Β
|
(f)
|
A
holder shall be treated as the unitholder of record of the Freely
Tradeable Units issued on due exercise by the Trust of its Unit Redemption
Right effective at the opening of business on the day immediately
following 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 to which a
unitholder of record of such Freely Tradeable Units would be entitled,
and
in the event that the Debenture Trustee receives the same, it shall
hold
the same in trust for the benefit of such holder.
|
Β
|
(g)
|
The
Trust shall at all times reserve and keep available out of its authorized
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 Freely Tradeable Units will be issued pursuant to exercise
of the
Unit Redemption Right, such number of Freely Tradeable Units as shall
be
issuable in such event. All Freely Tradeable Units which shall be
so
issuable shall be duly and validly issued as fully paid and
non-assessable.
|
Β
|
(h)
|
The
Trust shall comply with all Applicable Securities Legislation regulating
the issue and delivery of Freely Tradeable Units upon exercise of
the Unit
Redemption Right and shall cause to be listed and posted for trading
such
Units on each stock exchange on which the Units are then listed.
|
Β
|
(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
Units to holders upon exercise of the Unit Redemption Right pursuant
to
the terms of the Debentures and of this Indenture.
|
Β
-
43 -
Β
|
Β
|
(j)
|
If
the Trust elects to satisfy its obligation to pay all or any portion
of
the Redemption Price by issuing Freely Tradeable Units in accordance
with
this Section 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 Units issued by the Trust for this purpose, such
number
of Freely Tradeable 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.
|
Β
|
Β
|
(k)
|
Each
certificate representing Freely Tradeable 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 Freely Tradeable 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 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 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.
|
Β
|
Β
|
(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.
|
Β
4.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Failure to Surrender Debentures
Called for Redemption
Β
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 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 or Units so set aside and,
to
that extent, the Debenture shall thereafter not be considered as outstanding
hereunder and the Debentureholder
Β
-
44 -
Β
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 plus any accrued but unpaid interest thereon
to but excluding the Redemption Date. In the event that any money, or
certificates for Units, required to be deposited hereunder with the Debenture
Trustee or any depository or paying agent on account of principal or interest,
if any, on Debentures issued hereunder shall remain so deposited for a period
of
six years from the Redemption Date, then such monies or certificates for Units,
together with any accumulated interest thereon or any distribution paid 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 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
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 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.
Β
4.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Cancellation of Debentures
Redeemed
Β
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.
Β
4.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Purchase of Debentures by
the
Trust
Β
Unless
otherwise specifically provided with respect to a particular series of
Debentures, the Trust may, if no Event of Default has occurred which is
continuing, 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.
Β
If,
upon an invitation for tenders, more Debentures than the Trust is prepared
to
accept are tendered at the same lowest price, 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, 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,
Β
-
45 -
Β
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.
Β
4.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Right to Repay Principal
Amount
in Units
Β
|
Β
|
(a)
|
Subject
to the other provisions of this Section, the Trust may, at its option,
elect to satisfy its obligation to repay all or any portion of the
principal amount of the Debentures outstanding at the maturity of
such
Debentures by issuing and delivering to holders on the maturity of
such
Debentures (the "Maturity
Date") that number of Freely Tradeable Units obtained by dividing
the principal amount of the Debentures by 95% of the then Current
Market
Price of the Units on the Maturity Date (the "Unit Repayment
Right").
|
Β
|
Β
|
(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.
|
Β
|
Β
|
(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:
|
Β
|
Β
|
(i)
|
the
issuance of the Units on the exercise of the Unit Repayment Right
shall be
made in accordance with Applicable Securities Legislation and such
Units
shall be issued as Freely Tradeable Units;
|
Β
|
Β
|
(ii)
|
the
listing of such additional Freely Tradeable Units on each stock exchange
on which the Units are then listed;
|
Β
|
Β
|
(iii)
|
the
Trust being a reporting issuer in good standing under Applicable
Securities Legislation where the distribution of such Freely Tradeable
Units occurs;
|
Β
|
Β
|
(iv)
|
no
Event of Default shall have occurred and be continuing;
|
Β
|
Β
|
(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 Units to be delivered for each $1,000 principal
amount
of Debentures and the Current Market Price of the Units on the Maturity
Date; and
|
Β
|
Β
|
(vi)
|
the
receipt by the Debenture Trustee of an opinion of Counsel to the
effect
that such Units have been duly authorized and, when issued and delivered
|
Β
-
46 -
Β
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.
Β
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.
Β
|
Β
|
(d)
|
In
the event that the Trust duly exercises its Unit Repayment Right,
the
Trust shall on or before 11:00 a.m. (Calgary time) on the Maturity
Date,
deliver to the Debenture Trustee, for delivery to and on account
of the
holders, upon the due presentation and surrender of the Debentures,
the
Freely Tradeable 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 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) 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.
|
Β
|
Β
|
(e)
|
No
fractional Freely Tradeable 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 the preceding subsection, the cash equivalent thereof determined
by the
Trust on the basis of the Current Market Price of the Units on the
Maturity Date (less any tax required to be deducted, if any). Upon
request
by the Debenture Trustee, the Trust shall provide, in writing to
the
Debenture Trustee, the price to be paid in respect of such fractional
Units.
|
Β
|
Β
|
(f)
|
A
holder shall be treated as the unitholder of record of the Freely
Tradeable 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
|
Β
-
47 -
Β
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.
Β
|
Β
|
(g)
|
The
Trust shall at all times reserve and keep available out of its authorized
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 Freely Tradeable Units will be issued pursuant to exercise of
the
Unit Repayment Right, such number of Freely Tradeable Units as shall
be
issuable in such event. All Freely Tradeable Units which shall be
so
issuable shall be duly and validly issued as fully paid and
non-assessable.
|
Β
|
Β
|
(h)
|
The
Trust shall comply with all Applicable Securities Legislation regulating
the issue and delivery of Freely Tradeable Units upon exercise of
the Unit
Repayment Right and shall cause to be listed and posted for trading
such
Freely Tradeable Units on each stock exchange on which the Units
are then
listed.
|
Β
|
Β
|
(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
Units to holders upon exercise of the Unit Repayment Right pursuant
to the
terms of the Debentures and of this Indenture.
|
Β
|
Β
|
(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 Units in accordance with this Section 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 Units issued by the Trust for this purpose, such
number
of Freely Tradeable 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.
|
Β
|
Β
|
(k)
|
Each
certificate representing Freely Tradeable 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 therein; provided that if the Freely Tradeable 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
|
Β
-
48 -
Β
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 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 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.
Β
|
Β
|
(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.
|
Β
ARTICLE
5
SUBORDINATION
OF DEBENTURES
Β
5.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Applicability of Article
Β
The
indebtedness, liabilities and obligations of the Trust hereunder (except as
provided in Section 14.16) or under the Debentures, whether on account of
principal, interest or otherwise, but excluding the issuance of Units or other
securities 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, 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.
Β
5.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Definition
Β
For
the purposes of this Article, the words "cash, property or securities" shall
be
deemed not to include (i) Units of the Trust as reorganized or readjusted,
or
(ii) securities of the Trust or of any person provided for by a plan of
reorganization or readjustment the payment of which is subordinated, at least
to
the extent provided in this Article with respect to the Debentures to the
payment of all Senior Indebtedness which may at the time be outstanding provided
that the Senior Indebtedness are assumed by the new person, if any, resulting
from any such reorganization or readjustment and provided further than the
rights of the holders of the Senior Indebtedness are not, without the consent
of
such holders, altered by such reorganization or readjustment.
Β
5.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Order of Payment
Β
In
the event of any dissolution, winding-up, liquidation, reorganization,
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
Β
-
49 -
Β
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:
Β
|
Β
|
(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;
|
Β
|
Β
|
(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, 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, as their interests may appear, to the extent necessary to
pay in
full all Senior Indebtedness (remaining unpaid) after giving effect
to any
concurrent payment or distribution, or provision therefor, to the
holders
of such Senior Indebtedness; and
|
Β
|
Β
|
(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.
|
Β
The
rights and priority of the Senior Indebtedness and the subordination pursuant
hereto shall not be affected by:
Β
|
Β
|
(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;
|
Β
|
Β
|
(ii)
|
the
time or order of the attachment, perfection or crystallization of
any
security constituted by the Senior Security;
|
Β
|
Β
|
(iii)
|
the
taking of any collection, enforcement or realization proceedings
pursuant
to the Senior Security;
|
Β
|
Β
|
(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;
|
Β
-
50 -
Β
|
Β
|
(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;
|
Β
|
Β
|
(vi)
|
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;
|
Β
|
Β
|
(vii)
|
the
date of giving or failing to give notice to or making demand upon
the
Trust; or
|
Β
|
Β
|
(viii)
|
any
other matter whatsoever.
|
Β
5.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Subrogation to Rights of
Holders of Senior Indebtedness
Β
Subject
to the prior payment in full of all Senior Indebtedness, the rights of the
holders of the Debentures shall be subrogated to the rights of the holders
of
Senior Indebtedness to receive payments or distributions of assets of the Trust
in respect of and on account of the Senior Indebtedness, to the extent of the
application thereto of such payments or other assets which would have been
received by the holders of the Debentures but for the provisions hereof, until
the principal of and interest on and all other amounts owing hereunder or in
relation to the Debentures shall be paid in full. No such payments or
distributions to the holders of the Debentures of cash, property or securities
of the Trust payable to the holders of Debentures, which otherwise would be
payable or distributable to the holders of the Senior Indebtedness, shall,
as
between the Trust, its creditors other than the holders of Senior Indebtedness,
and the holders of Debentures, be deemed to be a payment by the Trust to or
on
account of the holders of the Senior Indebtedness, it being understood that
the
provisions of this Article are intended solely for the purpose of defining
the
relative rights of the holders of the Debentures, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
Β
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.
Β
5.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Obligation to Pay Not
Impaired
Β
Nothing
contained in this Article or elsewhere in this Indenture or in the Debentures
is
intended to or shall impair, as between the Trust, its creditors other than
the
holders of Senior Indebtedness, and the holders of the Debentures, the
obligation of the Trust, which is absolute and unconditional, to pay to the
holders of the Debentures the principal of and interest on the Debentures,
as
and when the same shall become due and payable in accordance with their terms,
or to affect the relative rights of the holders of the Debentures and creditors
of the Trust other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Debenture Trustee or the holder of any
Debenture from exercising all remedies
Β
-
51 -
Β
otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness.
Β
5.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
No Payment if Senior
Indebtedness in Default
Β
Upon
the maturity of any Senior Indebtedness by lapse of time, acceleration or
otherwise, or any other enforcement of any Senior Indebtedness, then, except
as
provided in Section 5.9, 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.
Β
In
case of an event of default with respect to any Senior Indebtedness permitting
a
Senior Creditor to demand payment or accelerate the maturity thereof, and
written notice of such event of default having been given by or on behalf of
the
holders of Senior Indebtedness to the Trust and the Debenture Trustee, then,
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 holders of Debentures 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, realization
of security or otherwise in any manner whatsoever) on account of the Debentures
after the happening of such a default (except as provided in Section 5.9),
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 holders of the Senior Indebtedness or their representative
or
representatives or to the trustee 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 the holders of such
Senior Indebtedness.
Β
The
fact that any payment hereunder is prohibited by this Section shall not prevent
the failure to make such payment from being an Event of Default
hereunder.
Β
5.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Payment on Debentures
Permitted
Β
Nothing
contained in this Article 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 5.6, any payment
of principal of or interest on the Debentures. The fact that any such payment
is
prohibited by Section 5.6 shall not prevent the failure to make such payment
from being an Event of Default hereunder. Nothing contained in this Article
or
elsewhere in this Indenture, or in any of the Debentures, shall prevent the
conversion of the Debentures or, except as prohibited by Section 5.6, 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.
Β
5.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Confirmation of
Subordination
Β
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
Β
-
52 -
Β
the
subordination as provided in this Article 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 as a Senior Creditor. 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.
Β
5.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Knowledge of Debenture
Trustee
Β
Notwithstanding
the provisions of this Article 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.
Β
5.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee May Hold
Senior Indebtedness
Β
The
Debenture Trustee is entitled to all the rights set forth in this Article 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.
Β
5.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Rights of Holders of Senior
Indebtedness Not Impaired
Β
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.
Β
5.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Altering the Senior
Indebtedness
Β
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.
Β
5.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Additional Indebtedness
Β
This
Indenture does not restrict the Trust from incurring additional indebtedness
for
Borrowed Money, including indebtedness that ranks senior to the Debentures
or
otherwise or mortgaging, pledging or charging its properties to secure any
indebtedness.
Β
-
53 -
Β
5.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Right of Debentureholder
to
Convert Not Impaired
Β
The
subordination of the Debentures to the Senior Indebtedness and the provisions
of
this Article do not impair in any way the right of a Debentureholder to convert
its Debentures pursuant to Article 6.
Β
5.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Invalidated Payments
Β
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 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.
Β
5.16Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Contesting Security
Β
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.
Β
ARTICLE
6
CONVERSION
OF DEBENTURES
Β
6.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Applicability of Article
Β
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 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.
Β
Such
right of conversion shall extend only to the maximum number of whole 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 Units shall be adjusted for in the manner provided
in
Section 6.6.
Β
6.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice of Expiry of Conversion
Privilege
Β
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
13.2.
Β
-
54 -
Β
6.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Revival of Right to
Convert
Β
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.
Β
6.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Manner of Exercise of Right
to
Convert
Β
|
Β
|
(a)
|
The
holder of a Debenture desiring to convert such Debenture in whole
or in
part into Units shall surrender such Debenture to the Debenture Trustee
at
its principal office in Calgary, Alberta together with the 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; provided that with
respect
to a Global Debenture, the obligation to surrender a Debenture to
the
Debenture Trustee shall be satisfied if the Debenture Trustee makes
notation on the Global Debenture of the principal amount thereof
so
converted and the Debenture Trustee is provided with all other
documentation which it may request. 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 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 certificate's
for such 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
or
in respect of fractional Units as provided in Section 6.6.
|
Β
|
Β
|
(b)
|
For
the purposes of this Article, a Debenture shall be deemed to be
surrendered for conversion on the date (the "Date of Conversion") on
which it is so surrendered when the register of the Debenture Trustee
is
open and in accordance with the provisions of this Article or, in
the case
of a Global Debenture which the Debenture Trustee received notice
of and
all necessary documentation in respect of the exercise of the conversion
rights 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 its office specified in the preceding subsection;
provided that if a Debenture is surrendered for conversion on a day
on
|
Β
-
55 -
Β
which
the register of Units is closed, the Person or Persons entitled to receive
Units
shall become the holder or holders of record of such Units as at the date on
which such register is next reopened.
Β
|
Β
|
(c)
|
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.
|
Β
|
Β
|
(d)
|
Upon
a holder of any Debenture exercising his or her 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
Debenture Trustee shall make notations on the Global Debenture of
the
principal amount thereof so converted. The expenses associated with
such
certification and delivery shall be borne by the Trust.
|
Β
|
Β
|
(e)
|
The
holder of a Debenture surrendered for conversion in accordance with
this
Section 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 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 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 Units.
|
Β
Notwithstanding
any other provisions of this Indenture, if a Debenture is surrendered for
conversion on an Interest Payment Date or during the five preceding Business
Days, the Person or Persons entitled to receive Units in respect of the
Debenture so surrendered for conversion shall not become the holder or holders
of record of such Units until the Business Day following such Interest Payment
Date. For greater certainty, until such time as such Person or Persons become
the holder or holders of record of such Units, the Person or Persons remain
entitled to receive interest on the Interest Payment Date.
Β
6.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Adjustment of Conversion
Price
Β
The
Conversion Price in effect at any date shall be subject to adjustment from
time
to time as set forth below.
Β
|
Β
|
(a)
|
If
and whenever at any time prior to the Time of Expiry the Trust shall
(i)
subdivide or redivide the outstanding Units into a greater number
of
units, (ii) reduce, combine or consolidate the outstanding Units
into a
smaller number of
|
Β
-
56 -
Β
units,
or (iii) issue Units to the holders of all or substantially all of the
outstanding Units by way of a dividend or distribution (other than the issue
of
Units to holders of Units who have elected to receive dividends or distributions
in the form of Units in lieu of cash dividends or cash distributions paid in
the
ordinary course on the 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 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 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 Units resulting from such reduction, combination
or
consolidation. Such adjustment shall be made successively whenever any event
referred to in this subsection shall occur.Β Β Any such issue of 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 Units under subsections (b) and (c) of this
Section.
Β
|
Β
|
(b)
|
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 Units entitled to
them,
for a period expiring not more than 45 days after such record date,
to
subscribe for or purchase Units (or securities convertible into 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 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 Units outstanding on such record date
plus a
number of Units equal to the quotient obtained by dividing the aggregate
price of the total number of additional 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 Unit, and
of which
the denominator shall be the total number of Units outstanding on
such
record date plus the total number of additional 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 readjusted 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 Units (or securities
convertible into Units) actually issued upon the exercise of such
options,
rights or warrants were included in such fraction, as the case may
be.
|
Β
|
Β
|
(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 Units of (i) units of any class other
than
Units and other than units
|
Β
-
57 -
Β
distributed
to holders of 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 for a period of not more than 45 days
to
subscribe for or purchase Units or securities convertible into Units), (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 Units outstanding on such record date multiplied by the Current Market
Price per Unit on such record date, less the fair market value (as determined
by
the Trust, with the approval of the Debenture Trustee, which determination
shall
be conclusive) of such units or rights, options or warrants or evidences of
indebtedness or assets so distributed, and of which the denominator shall be
the
total number of Units outstanding on such record date multiplied by such Current
Market Price per 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 readjusted 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 based upon such units or rights, options or
warrants or evidences of indebtedness or assets actually distributed, were
included in such fraction as the case may be. In clause (iv) of this subsection
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.
Β
|
Β
|
(d)
|
If
and whenever at any time prior to the Time of Expiry, there is a
reclassification of the 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 or a similar transaction
with or into any other Person or other entity; or a sale or conveyance
of
the property and 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, amalgamation, arrangement,
consolidation or merger, sale or conveyance or liquidation, dissolution
or
winding-up or such other similar transaction, upon the exercise of
such
right thereafter, shall be entitled to receive and shall accept,
in lieu
of the number of Units then sought to be acquired by it, the number
of
Units, shares or other securities or property of the Trust or of
the
Person or other entity resulting from such merger, amalgamation,
arrangement, consolidation or similar transaction, or to which such
sale
or conveyance may be made or which holders of 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 or merger,
sale or
conveyance or liquidation, dissolution or
|
Β
-
58 -
Β
winding-up
or such other similar transaction, 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 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 Trust, to give effect to or to evidence the provisions of this subsection,
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, merger, sale or conveyance or
liquidation, dissolution or winding-up or such other similar transaction, 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 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
subsection shall be a supplemental indenture entered into pursuant to the
provisions of Article 15. 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 subsection
and which shall apply to successive reclassifications, capital reorganizations,
consolidations, mergers, sales or conveyances or other similar
transactions.
Β
|
Β
|
(e)
|
In
any case in which this Section 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 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 holders right to receive such additional
Units
upon the occurrence of the event requiring such adjustment and the
right
to receive any distributions made on such additional Units declared
in
favour of holders of record of Units on and after the Date of Conversion
or such later date as such holder would, but for the provisions of
this
subsection, have become the holder of record of such additional Units
pursuant to Section 6.4(b).
|
Β
|
Β
|
(f)
|
The
adjustments provided for in this Section 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; and provided further however, that any adjustments which
by reason
of this subsection are not required to be made shall be carried forward
and taken into account in any subsequent adjustment.
|
Β
-
59 -
Β
|
Β
|
(g)
|
For
the purpose of calculating the number of Units outstanding, Units
owned by
or for the benefit of the Trust shall not be counted.
|
Β
|
Β
|
(h)
|
In
the event of any question arising with respect to the adjustments
provided
in this Section, such question shall be conclusively determined by
a firm
of nationally recognized chartered accountants appointed by the Trust
and
reasonably 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 (subject to manifest
error).
|
Β
|
Β
|
(i)
|
In
case the Trust shall take any action affecting the Units other than
action
described in this Section, which in the opinion of the directors
of the
Administrator 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 the Administrator
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 the Administrator on behalf 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.
|
Β
|
Β
|
(j)
|
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.
|
Β
|
Β
|
(k)
|
Except
as stated above in this Section, no adjustment will be made in the
Conversion Price for any Debentures as a result of the issuance of
Units
at less than the Current Market Price for such Units on the date
of
issuance or the then applicable Conversion Price.
|
Β
6.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
No Requirement to Issue
Fractional Units
Β
The
Trust shall not be required to issue fractional 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
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 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.
Β
-
60 -
Β
6.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Trust to Reserve Units
Β
The
Trust covenants with the Debenture Trustee that it will at all times reserve
and
keep available out of its authorized 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 Units as shall then be issuable upon the conversion of all outstanding
Debentures. The Trust covenants with the Debenture Trustee that all Units which
shall be so issuable shall be duly and validly issued as fully-paid and
non-assessable.
Β
6.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Cancellation of Converted
Debentures
Β
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 forthwith delivered to and cancelled by the Debenture Trustee and
no
Debenture shall be issued in substitution therefor.
Β
6.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Certificate as to
Adjustment
Β
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
nationally recognized 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 Units, forthwith give notice to the
Debentureholders in the manner provided in Section 13.2 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 under
this Section 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.
Β
6.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice of Special
Matters
Β
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 13.2, of its intention to
fix
a record date for any event referred to in Section 6.5(a), (b) or (c) (other
than the subdivision, redivision, reduction, combination or consolidation of
its
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.
Β
-
61 -
Β
6.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Protection of Debenture
Trustee
Β
Subject
to Section 14.3, the Debenture Trustee:
Β
|
Β
|
(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;
|
Β
|
Β
|
(b)
|
shall
not be accountable with respect to the validity or value (or the
kind or
amount) of any 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
|
Β
|
Β
|
(c)
|
shall
not be responsible for any failure of the Trust to make any cash
payment
or to issue, transfer or deliver 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.
|
Β
6.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
U.S. Legend on Units
Β
Each
certificate representing 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 for or in substitution of the foregoing
securities, shall also bear the U.S. Legend set forth in Section 2.14; provided
that if the 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 set forth in
Schedule "0E" 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 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.
Β
ARTICLE
7
COVENANTS
OF THE TRUST
Β
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:
Β
7.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
To Pay Principal and
Interest
Β
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.
Β
-
62 -
Β
7.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
To Carry Out This
Indenture
Β
The
Trust will duly and punctually perform and carry out all of the acts or things
to be done by it as provided in this Indenture.
Β
7.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
To Pay Debenture Trustee's
Remuneration
Β
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, expenses, disbursements and advances which shall have been paid
by
the Debenture Trustee in connection with the execution of the trusts hereby
created and such monies, expenses, disbursements and advances 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. Such 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.
Β
7.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
To Give Notice of
Default
Β
The
Trust shall notify the Debenture Trustee immediately upon obtaining knowledge
of
any default or Event of Default hereunder.
Β
7.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
To Carry on Business
Β
The
Trust will maintain its property and cause each of its Subsidiaries to maintain
its property and carry on its business in accordance with good business
practices, will keep or cause to be kept proper books of account in relation
to
its properties and the properties and business of its Subsidiaries and, subject
to the other provisions of this Indenture, will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
and will not consolidate or merge with any other person or transfer all or
substantially all of its undertaking and property as an entirety or
substantially as an entirety to any other person, except in compliance with
the
provisions of Section 6.5 and Article 10; provided, however, that, except as
otherwise provided in Article 11, nothing herein contained shall prevent the
Trust or any of its Subsidiaries from ceasing to own, maintain or operate any
premises or property or, in the case of its Subsidiaries, such Subsidiary's
business if, in the opinion of the directors of the Administrator on behalf
of
the Trust, it shall be advisable and in the best interests of the Trust.
Β
7.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Keeping of Books
Β
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.
Β
7.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Annual Certificate of
Compliance
Β
The
Trust shall deliver to the Debenture Trustee annually within 90 days (or such
longer period as the Debenture Trustee in its sole discretion may consent to)
after the end of each
Β
-
63 -
Β
fiscal
year, an Officer's Certificate stating that the Trust has complied with all
covenants, conditions or other requirements contained in this Indenture,
non-compliance with which would, with the giving of notice or the lapse of
time,
or both, or otherwise, constitute an Event of Default hereunder or, if the
Trust
has not complied with all such requirements, giving particulars as to each
non-compliance and the action, if any, the Trust proposes to take with respect
thereto.
Β
7.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
To Provide Financial
Statements
Β
The
Trust will furnish to the Debenture Trustee a copy of all consolidated financial
statements of the Trust, whether annual or interim and the report, if any, of
the Trust's auditors thereon and all annual or periodic financial reports of
the
Trust, which are furnished to the holders of Units promptly upon the
distribution thereof to the holders of Units.
Β
Upon
receipt of such financial statements or reports (as the case may be), the
Debenture Trustee shall, while such statements or reports (as the case may
be)
are current, maintain custody of same and make same available for inspection
by
holders of Debentures upon their reasonable request. No obligation shall rest
with the Debenture Trustee to analyse such statements or reports (as the case
may be) or evaluate the performance of the Trust as indicated therein, in any
manner whatsoever.
Β
7.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Not to Extend Time for Payment
of Interest or Principal
Β
In
order to prevent any accumulation after maturity of unpaid interest or of unpaid
Debentures, the Trust will not directly or indirectly extend or assent to the
extension of time for payment of any interest upon any Debentures or of any
principal payable in respect thereof and it will not, directly or indirectly,
be
or become a party to or approve any such arrangement by purchasing or funding
any interest on, or principal of, Debentures or in any other manner. In case
the
time for the payment of any such interest or principal shall be so extended,
whether or not such extension be by or with the consent of the Trust,
notwithstanding anything herein or in the Debentures contained, such interest
or
principal shall not be entitled in case of default hereunder to the benefits
of
this Indenture except subject to the prior payment in full or all matured
interest on the principal of Debentures, the payment of which has not been
so
extended.
Β
7.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee May Perform
Covenants
Β
If
the Trust shall fail to perform any covenant on its part herein contained,
the
Debenture Trustee may in its discretion, but (subject to Sections 8.2 and 13.4)
need not, notify the Debentureholders of such failure or itself may (but need
not) perform any of said covenants capable of being performed by it and, if
any
such covenant requires the payment or expenditure of money, it may make such
payment or expenditure with its own funds, or with money borrowed by or advanced
to it for such purposes, but shall be under no obligation to do so; and all
sums
so expended or advanced shall be repayable by the Trust in the manner provided
in Section 7.3, but no such performance or payment shall be deemed to relieve
the Trust from any default hereunder or from its continuing indebtedness
hereunder.
Β
-
64 -
Β
7.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Listing
Β
The
Trust shall use commercially reasonable efforts to ensure that the Units are
listed and posted on the Toronto Stock Exchange, and maintain such listing
and
posting for trading of the Units on the Toronto Stock Exchange; and to maintain
the Trust's status as a "reporting issuer" not in default of the requirements
of
the securities legislation and regulations of each of the applicable provinces
and territories of Canada. The Trust shall use commercially reasonable efforts
to have the Debentures listed and posted for trading on the Toronto Stock
Exchange as soon as is reasonably practicable following the date hereof and
to
maintain such listing and posting thereafter.
Β
7.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
No Distributions on Units
if
Event of Default
Β
The
Trust shall not, without the prior approval of the holders of Debentures:
Β
|
Β
|
(a)
|
declare
or pay any distributions (other than distributions in Units) on any
Units;
or
|
Β
|
Β
|
(b)
|
call
for redemption or purchase for cancellation or make any capital
distribution with respect to any Units;
|
Β
at
any time after the happening of an Event of Default unless and until such
default shall have been cured or waived or shall have ceased to exist.
Β
7.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Taxation
Β
The
Trust shall make all payments of principal and interest (including interest
on
amounts in default) on the Debentures without withholding of or deduction for
or
on account of any present or future taxes imposed or levied by any taxing
authority unless such taxes are required to be withheld or deducted by the
Trust
by law or by the interpretation or administration thereof, or upon demand of
the
taxing authority. Whenever in this Indenture the Trust is obligated to make
a
payment in respect of which it is so required to withhold or deduct a sum in
respect of taxes, the provision shall be read and construed so as to permit
such
deduction or withholding (whether or not explicitly stated in connected with
the
particular payment obligation).
Β
The
Trust shall make any withholdings or deductions in respect of taxes required
by
law or by the interpretation or administration thereof and shall remit the
full
amount withheld or deducted to the relevant taxing authority in accordance
with
applicable law and shall provide the Debenture Trustee with full particulars
thereof.
Β
7.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Issuance Test
Β
The
Trust shall not issue Additional Debentures or other debt instruments of equal
ranking after the issuance of the Initial Debentures if the aggregate principal
amount of all issued and outstanding Debentures or other debt instruments of
equal ranking exceeds 25% of the total market capitalization of the Trust
immediately after the issuance of such Additional Debentures or other debt
instruments of equal ranking.Β Β For the purpose of this Section, the
total market capitalization of the Trust is defined as the total principal
amount of all Additional Debentures or
Β
-
65 -
Β
other
debt instruments of equal ranking plus the amount obtained by multiplying the
number of issued and outstanding Units by the Current Market Price of the Units
as determined on the relevant day.
Β
ARTICLE
8
DEFAULT
Β
8.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Events of Default
Β
Each
of the following events constitutes, and is herein sometimes referred to as,
an
"Event of Default":
Β
|
Β
|
(a)
|
failure
for 10 days to pay interest on the Debentures when due;
|
Β
|
Β
|
(b)
|
failure
to pay principal on the Debentures when due whether at maturity,
upon
redemption, by declaration or otherwise;
|
Β
|
Β
|
(c)
|
default
in the observance or performance of any material covenant or condition
of
the 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;
|
Β
|
Β
|
(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 winding-up or liquidation of its affairs, and any such decree
or order
continues unstayed and in effect for a period of 60 days;
|
Β
|
Β
|
(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 all, 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; or
|
Β
|
Β
|
(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 10.1 are duly observed
and
performed;
|
Β
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
Β
-
66 -
Β
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 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.
Β
For
greater certainty, for the purposes of this Section, 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 or interest on the Debentures
of such series in which case references to Debentures in this Section shall
refer to Debentures of that particular series.
Β
For
the purposes of this Article, where the Event of Default refers to an Event
of
Default with respect to a particular series of Debentures as described in this
Section, then this Article shall apply mutatis mutandis to the Debentures of
such series and references in this Article 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.
Β
8.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice of Events of
Default
Β
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 13.1, 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.
Β
Where
notice of the occurrence of an Event of Default has been given and the Event
of
Default is thereafter cured, notice that the Event of Default is no longer
continuing shall be given by the Debenture Trustee to the Debentureholders
within 15 days after the Debenture Trustee becomes aware the Event of Default
has been cured.
Β
8.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Waiver of Default
Β
Upon
the happening of any Event of Default hereunder:
Β
|
Β
|
(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
|
Β
-
67 -
Β
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
nonperformance 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
Β
|
Β
|
(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.
|
Β
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.
Β
8.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Enforcement by the Debenture
Trustee
Β
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 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 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.
Β
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
Β
-
68 -
Β
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 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.
Β
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.
Β
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.
Β
8.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
No Suits by
Debentureholders
Β
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
Β
-
69 -
Β
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, funding 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 condition precedent to any such proceeding or for
any
other remedy hereunder by or on behalf of the holder of any Debentures.
Β
8.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Application of Monies by
Debenture Trustee
Β
|
Β
|
(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, 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:
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(ii)
|
second,
but subject as hereinafter in this Section provided, in payment,
rateably
and proportionately to the holders of Debentures, of the principal
of 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 accrued and unpaid interest and interest on amounts
in
default unless otherwise directed by Extraordinary Resolution and
in that
case in such order or priority as between principal and interest
as may be
directed by such resolution; and
|
Β
|
Β
|
(iii)
|
third,
in payment of the surplus, if any, of such monies to the Trust or
its
assigns or as the Trust may direct;
|
Β
provided,
however, that no payment shall be made pursuant to clause (ii) above in respect
of the principal 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 and interest (if any)
on
all Debentures which are not so held.
Β
|
Β
|
(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
|
Β
-
70 -
Β
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 14.9 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.
Β
8.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice of Payment by Debenture
Trustee
Β
Not
less than 15 days notice shall be given in the manner provided in Section 13.2
by the Debenture Trustee to the Debentureholders of any payment to be made
under
this Article. 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.Β Β 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 and interest
due
(if any) to them, respectively, on the Debentures, after deduction of the
respective amounts payable in respect thereof on the day so fixed.
Β
8.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee May Demand
Production of Debentures
Β
The
Debenture Trustee shall have the right to demand production of the Debentures
in
respect of which any payment of principal or interest required by this Article
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.
Β
8.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Remedies Cumulative
Β
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
statute.
Β
8.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Judgment Against the
Trust
Β
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 the interest
thereon and any other monies owing hereunder.
Β
-
71 -
Β
8.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Immunity of Debenture Trustee
and Others
Β
The
Debentureholders 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 or director of the Debenture Trustee or the Administrator, any
trustee of the Trust or holder of units of the Trust or of any successor
thereto, for the payment of the principal of or interest on any of the
Debentures or on any covenant, agreement, representation or warranty by the
Trust contained herein or in the Debentures.
Β
ARTICLE
9
SATISFACTION
AND DISCHARGE
Β
9.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Cancellation and
Destruction
Β
All
Debentures shall forthwith after payment thereof 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.
Β
9.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Non-Presentation of
Debentures
Β
In
case the holder of any Debenture shall fail to present the same for payment
on
the date on which the principal 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:
Β
|
Β
|
(a)
|
the
Trust shall be entitled to pay or deliver to the Debenture Trustee
and
direct it to set aside; or
|
Β
|
Β
|
(b)
|
in
respect of monies or 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
|
Β
|
Β
|
(c)
|
if
the redemption was pursuant to notice given by the Debenture Trustee,
the
Debenture Trustee may itself set aside;
|
Β
the
principal 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 or the interest
payable on or represented by each Debenture in respect whereof such monies
or
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 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.
Β
-
72 -
Β
9.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Repayment of Unclaimed Monies
or Units
Β
Subject
to applicable law, any monies or 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 Units, if applicable, and thereafter the holders of the Debentures in respect
of which such monies or 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 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 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.
Β
9.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Discharge
Β
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 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.
Β
9.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Satisfaction
Β
|
Β
|
(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:
|
Β
|
Β
|
(i)
|
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 Units, if applicable, sufficient
to
pay, satisfy and discharge the entire amount of principal, and interest,
if any, to maturity or any repayment date or Redemption Dates, as
the case
may be, of such Debentures; or
|
Β
-
73 -
Β
|
Β
|
(ii)
|
the
Trust has deposited or caused to be deposited with the Debenture
Trustee
as property in trust for the purpose of making payment on such Debentures:
|
Β
|
Β
|
(A)
|
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
Units, if
applicable; or
|
Β
|
Β
|
(B)
|
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 Units, if applicable;
|
Β
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;
Β
and
in either event:
Β
|
Β
|
(iii)
|
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
|
Β
|
Β
|
(iv)
|
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.
|
Β
Any
deposits with the Debenture Trustee referred to in this Section 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, if any, on the Debentures being satisfied.
Β
|
Β
|
(b)
|
Upon
the satisfaction of the conditions set forth in this Section 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 Article 2, Article 4, Article
6
and Section 8.4 and the provisions of
|
Β
-
74 -
Β
Article
1 pertaining to the foregoing provisions) shall no longer be binding upon or
applicable to the Trust.
Β
|
Β
|
(c)
|
Any
funds or obligations deposited with the Debenture Trustee pursuant
to this
Section shall be denominated in the currency or denomination of the
Debentures in respect of which such deposit is made.
|
Β
|
Β
|
(d)
|
If
the Debenture Trustee is unable to apply any money or securities
in
accordance with this Section 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 until such time as the Debenture Trustee
is
permitted to apply all such money or securities in accordance with
this
Section, provided that if the Trust has made any payment in respect
of
principal 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.
|
Β
9.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Continuance of Rights, Duties
and Obligations
Β
|
Β
|
(a)
|
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
Article 2
and Article 4, as may be applicable.
|
Β
|
Β
|
(b)
|
In
the event that, after the deposit of trust funds or trust property
pursuant to Section 9.5 in respect of a series of Debentures (the
"Defeased Debentures"),
any holder of any of the Defeased Debentures from time to time converts
its Debentures to Units or other securities of the Trust in accordance
with Subsection 2.4(f) Article 6 or any other provision of this Indenture,
the Debenture Trustee shall upon receipt of a Written Directions
of the
Trust return to the Trust from time the proportionate amount of the
trust
funds or other trust property deposited with the Debenture Trustee
pursuant to Section 9.5 in respect of the Defeased Debentures which
is
applicable to the Defeased Debentures so converted (which amount
shall be
based on the applicable principal amount of the Defeased Debentures
being
converted in relation to the aggregate outstanding principal amount
of all
the Defeased Debentures).
|
Β
|
Β
|
(c)
|
In
the event that, after the deposit of trust funds or trust property
pursuant to Section 9.5, the Trust is required to make an Offer to
purchase any outstanding Debentures pursuant to Subsection 2.4(h)
in
relation to Initial Debentures or to make an offer to purchase Debentures
pursuant to any other similar provisions relating to any other series
of
Debentures, the Trust shall be entitled to use any trust money or
trust
property deposited with the. Debenture Trustee pursuant to Section
9.5 for
the purpose of paying to any holders of Defeased Debentures who
|
Β
-
75 -
Β
have
accepted any such offer of the Trust the Total Offer Price payable to such
holders in respect of such Offer in respect of Initial Debentures (or the total
offer price payable in respect of an offer relating to any other series of
Debentures). Upon receipt of a Written Direction from the Trust, the Debenture
Trustee shall be entitled to pay to such holder from such trust money or trust
property deposited with the Debenture Trustee pursuant to Section 9.5 in respect
of the Defeased Debentures which is applicable to the Defeased Debentures held
by such holders who have accepted any such offer to the Trust (which amount
shall be based on the applicable principal amount of the Defeased Debentures
held by accepting offerees in relation to the aggregate outstanding principal
amount of all the Defeased Debentures).
Β
ARTICLE
10
SUCCESSORS
Β
10.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Restrictions on Merger and
Sale
of Certain Assets, etc.
Β
Subject
to the provisions of Article 11, 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, merger, liquidation, transfer, sale,
lease or otherwise, unless:
Β
|
Β
|
(a)
|
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:
|
Β
|
Β
|
(i)
|
the
Successor will have assumed all the covenants and obligations of
the Trust
under this Indenture in respect of the Debentures;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(iii)
|
in
the case of a successor organized otherwise than under the laws of
the
Province of Alberta, such successor shall attorn to the jurisdiction
of
the courts of the Province of Alberta;
|
Β
|
Β
|
(b)
|
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;
|
Β
|
Β
|
(c)
|
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
shall
become liable to pay the principal monies, interest and other monies
due
or which may become due hereunder,
|
Β
-
76 -
Β
which
constitutes or would, with the giving of notice or the lapse of time or both,
constitute an Event of Default hereunder; and
Β
|
Β
|
(d)
|
such
Successor is a trust formed or a corporation incorporated under the
laws
of Canada or one of its provinces.
|
Β
10.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Vesting of Powers in
Successor
Β
Whenever
the conditions of Section 10.1 shall have been duly observed and performed,
upon
the Debenture Trustee and the Successor duly executing and delivering a
supplemental indenture in form and substance satisfactory to Counsel: (a) the
Successor shall possess and from time to time may exercise each and every right
and power of the Trust under this Indenture in the name of the Trust or
otherwise and any act or proceeding by any provision of this Indenture required
to be done or performed by any directors or officers of the Administrator on
behalf of the Trust or the trustee of the Trust may be done and performed with
like force and effect by the directors, trustee or officers of such Successor;
and (b) the Trust shall be released and discharged from liability under this
Indenture and the Debenture Trustee may execute any documents which it may
be
advised are necessary or advisable for effecting or evidencing such release
and
discharge.
Β
ARTICLE
11
COMPULSORY
ACQUISITION
Β
11.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Definitions
Β
The
following definitions apply only to this Article 11:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β
"Affiliate" and "Associate"
shall have their
respective meanings set forth in the
Securities
Act
(Alberta);
Β
|
Β
|
(b)
|
"Dissenting
Debentureholders" means a Debentureholder who does not accept an
Offer referred to in Section 11.2 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;
|
Β
|
Β
|
(c)
|
"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;
|
Β
(d)Β Β Β Β Β Β Β Β Β Β Β
"offer to acquire"
includes an acceptance of an offer to sell;
Β
|
Β
|
(e)
|
"Offeror"
means a Person,
or two or more Persons acting jointly or in concert, who make an
Offer to
acquire Debentures;
|
Β
(f)Β Β Β Β Β Β Β Β Β Β Β
"Offeror's Notice" means
the notice described in Section 11.3; and
Β
-
77 -
Β
|
Β
|
(g)
|
"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 or company acting jointly
or in
concert with the Offeror.
|
Β
11.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Offer for Debentures
Β
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:
Β
|
Β
|
(a)
|
within
the time provided in the Offer for its acceptance or within 60 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;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(c)
|
the
Offeror complies with Sections 11.3 and 11.5;
|
Β
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.
Β
11.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Offeror's Notice to Dissenting
Shareholders
Β
Where
an Offeror is entitled to acquire Debentures held by Dissenting Debentureholders
pursuant to Section 11.2 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:
Β
|
Β
|
(a)
|
Debentureholders
holding at least 90% of the principal amount of all outstanding
Debentures, other than Offeror's Debentures, have accepted the Offer;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(c)
|
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.
|
Β
11.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Delivery of Debenture
Certificates
Β
A
Dissenting Debentureholder to whom an Offeror's Notice is sent pursuant to
Section 11.3 shall, within 21 days after the sending of the Offeror's Notice,
send Debentures to the Debenture Trustee duly endorsed for transfer.
Β
-
78 -
Β
11.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Payment of Consideration
to
Debenture Trustee
Β
Within
21 days after the Offeror sends an Offeror's Notice pursuant to Section 11.3,
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 11.2. 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.
Β
11.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Consideration to be held
in
Trust
Β
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 11.5. 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.
Β
11.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Completion of Transfer of
Debentures to Offeror
Β
Within
30 days after the date of the sending of an Offeror's Notice pursuant to Section
11.3, the Debenture Trustee, if the Offeror has complied with Section 11.5,
shall:
Β
|
Β
|
(a)
|
do
all acts and things and execute and cause to be executed all instruments
as in the Debenture Trustee's opinion, relying on Counsel, may be
necessary or desirable to cause the transfer of the Debentures of
the
Dissenting Debentureholders to the Offeror;
|
Β
|
Β
|
(b)
|
send
to each Dissenting Debentureholder who has complied with Section
11.4 the
consideration to which such Dissenting Debentureholder is entitled
under
this Article; and
|
Β
|
Β
|
(c)
|
send
to each Dissenting Debentureholder who has not complied with Section
11.4
a notice stating that:
|
Β
|
Β
|
(i)
|
his
or her Debentures have been transferred to the Offeror;
|
Β
|
Β
|
(ii)
|
the
Debenture Trustee or some other Person designated in such notice
are
holding in trust the consideration for such Debentures; and
|
Β
|
Β
|
(iii)
|
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;
|
Β
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.
Β
-
79 -
Β
11.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Communication of Offer to
Trust
Β
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.
Β
ARTICLE
12
MEETINGS
OF DEBENTUREHOLDERS
Β
12.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Right to Convene Meeting
Β
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.
Β
12.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice of Meetings
Β
|
Β
|
(a)
|
At
least 21 days notice of any meeting shall be given to the Debentureholders
in the manner provided in Section 13.2 and a copy of such notice
shall be
sent by post to the Debenture Trustee, unless the meeting has been
called
by it, and to the Trust, 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.
|
Β
|
Β
|
(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 12.15, especially affects the rights of
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 12.2(c) and (d)), then:
|
Β
|
Β
|
(i)
|
a
reference to such fact, indicating each series of Debentures in the
opinion of the Debenture Trustee so especially affected (hereinafter
referred to as the "especially affected
series") shall be made in the notice
|
Β
-
80 -
Β
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
Β
|
Β
|
(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 12.15 unless in addition to compliance with the other provisions
of this Article:
|
Β
|
Β
|
(A)
|
at
such Serial Meeting: (1) 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 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 /%) of the
principal amount of the Debentures of such series then outstanding
voted
on the resolution; or
|
Β
|
Β
|
(B)
|
in
the case of action taken or power exercised by instrument in writing
under
Section 12.15, such instrument is signed in one or more counterparts
by
the holders of not less than 66 % in principal amount of the Debentures
of
such series then outstanding.
|
Β
|
Β
|
(c)
|
Subject
to Section 12.2(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 12.15,
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.
|
Β
|
Β
|
(d)
|
A
proposal:
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(iii)
|
to
reduce with respect to Debentureholders of any particular series
any
percentage stated in this Section 12.2 or Sections 12.4, 12.12 and
12.15;
|
Β
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
Β
-
81 -
Β
extension,
reduction, modification or termination is proposed with respect to Debentures
of
any or all other series.
Β
12.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Chairman
Β
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.
Β
12.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Quorum
Β
Subject
to the provisions of Section 12.12, 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 12.12, 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.
Β
12.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Power to Adjourn
Β
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.
Β
12.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Show of Hands
Β
Every
question submitted to a meeting shall, subject to Section 12.7, 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.Β Β The
chairman of any
Β
-
82 -
Β
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.
Β
12.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Poll
Β
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 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.
Β
12.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Voting
Β
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
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.
Β
12.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Proxies
Β
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:
Β
|
Β
|
(a)
|
the
voting by proxy by Debentureholders and 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;
|
Β
-
83 -
Β
|
Β
|
(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
|
Β
|
Β
|
(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.
|
Β
Any
regulations so made shall be binding and effective and the votes given in
accordance therewith shall be valid and shall be counted. The Debenture Trustee
may dispense with any such deposit and permit Debentureholders to make proof
of
ownership in such other manner, if any, as the Debenture Trustee may approve.
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.
Β
12.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Persons Entitled to Attend
Meetings
Β
The
Trust and the Debenture Trustee, by their respective officers, employees,
directors, the Administrator, and trustee, 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.
Β
12.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Powers Exercisable by
Extraordinary Resolution
Β
In
addition to the powers conferred upon them by any other provisions of this
Indenture or by law, a meeting of the Debentureholders shall, subject to prior
Toronto Stock Exchange approval, if required, have the following powers
exercisable from time to time by Extraordinary Resolution:
Β
|
Β
|
(a)
|
power
to authorize the Debenture Trustee to grant extensions of time for
payment
of any principal or interest on the Debentures, whether or not the
principal or interest, the payment of which is extended, is at the
time
due or overdue;
|
Β
|
Β
|
(b)
|
power
to sanction any modification, abrogation, alteration, compromise
or
arrangement of the rights of the Debentureholders or the Debenture
Trustee
(with the prior written consent of the Debenture Trustee) against
the
Trust, or against its property or assets or any part thereof, whether
such
rights arise under this Indenture or the Debentures or otherwise;
|
Β
|
Β
|
(c)
|
subject
to obtaining all required regulatory approvals (including stock exchange
approvals), 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
|
Β
-
84 -
Β
shall
be agreed to by the Trust and to authorize the Debenture Trustee to concur
in
and execute any indenture supplemental hereto embodying any modification,
change, addition or omission;
Β
|
Β
|
(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 10.1 shall have been complied
with;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(g)
|
power,
subject to Section 8.5, to restrain any Debentureholder from taking
or
instituting any suit, action or proceeding; for the purpose of enforcing
payment of the principal or interest on the Debentures, or for the
execution of any trust or power hereunder, or for the appointment
of a
liquidator, receiver or trustee-in-bankruptcy, or to have the Trust
wound
up, and to require any holder of any Debenture to waive any default
or
defaults by the Trust hereunder or upon which any action or proceeding
is
founded;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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 and the
|
Β
-
85 -
Β
Debenture
Trustee by the Debentureholders. 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, from
its members, 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 nor the Debenture
Trustee 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;
Β
|
Β
|
(k)
|
power
to authorize the Debenture Trustee or any other person or persons
to bid
at any sale of the Trust's properties or assets or any part thereof
and to
borrow the monies required to make any deposit at said sale or pay
the
balance of the purchase price and to hypothecate, mortgage, pledge,
charge, cede and transfer the property or assets so purchased as
security
for the repayment of the monies so borrowed and interest thereon,
or
itself, himself or themselves, as the case may be, to advance such
monies
(in which event it, he or they shall have a lien upon the property
or
assets so purchased for the amount so advanced and interest thereon)
and
to hold any property or assets so purchased (subject to any hypothec,
mortgage, pledge, charge or lien to secure any monies so borrowed
or
advanced) in trust for all the Debentureholders outstanding at the
time of
such sale pro rata in proportion to the amounts due to them thereon
respectively for principal of and interest on Debentures then outstanding
before such sale, and to sell, transfer and convey the whole or any
part
or parts of the property or assets so purchased for such consideration
in
cash or in the shares, bonds, debentures or other securities or
obligations of any company formed or to be formed, or partly in cash
and
partly in such securities or obligations, and upon such terms and
conditions as may be determined by such Extraordinary Resolution
of the
Debentureholders and, subject to such terms and conditions, to dispose
of
such cash, units, bonds, debentures or other securities or obligations
pursuant to the provisions of Section 12.11(n), and until the sale,
transfer or conveyance of the whole of such property or assets so
purchased to maintain and operate such part of said property and
assets as
has not been disposed of, and for such purposes to borrow monies
and to
hypothecate, mortgage, pledge, charge and cede and transfer the property
and assets so purchased, or any part thereof, as security for the
repayment of the monies so borrowed, with interest thereon, or itself,
himself or themselves, as the case may be, to advance such monies
(in
which event it, he or they shall have a lien or charge upon the property
and assets so purchased for the amounts so advanced and interest
thereon)
and otherwise deal with such property and assets and the proceeds
of any
sale, transfer or conveyance thereof as the Debentureholders may
by such
Extraordinary Resolution direct;
|
Β
|
Β
|
(l)
|
power
to remove the Debenture Trustee from office and to appoint a new
Debenture
Trustee or Debenture Trustee provided that no such removal shall
be
|
Β
-
86 -
Β
effective
unless and until a new Debenture Trustee or Debenture Trustee shall have become
bound by this Indenture;
Β
|
Β
|
(m)
|
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;
|
Β
|
Β
|
(n)
|
power
to authorize the distribution of any shares or securities received
pursuant to a transaction authorized under the provisions of Section
12.11(m); and
|
Β
|
Β
|
(o)
|
power
to amend, alter or repeal any Extraordinary Resolution previously
passed
or sanctioned by the Debentureholders or by any committee appointed
pursuant to Section 12.11(j).
|
Β
Notwithstanding
the foregoing provisions of this Section, 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.
Β
12.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Meaning of "Extraordinary
Resolution"
Β
|
Β
|
(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 662/3%
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 662/3%
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.
|
Β
|
Β
|
(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 13.2. Such notice may be given prior
to the
convening of the original meeting, in anticipation of no quorum being
present thereat, in which event it shall state that it is to have
effect
only if the
|
Β
-
87 -
Β
original
meeting is adjourned for lack of a quorum. 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
662/3%
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 662/3%
of the
principal amount of the Debentures of each especially affected series, in each
case present or represented by proxy at the meeting and 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.
Β
|
Β
|
(c)
|
Votes
on an Extraordinary Resolution shall always be given on a poll and
no
demand for a poll on an Extraordinary Resolution shall be necessary.
|
Β
12.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Powers Cumulative
Β
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.
Β
12.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Minutes
Β
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 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.
Β
12.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Instruments in Writing
Β
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 662/3%
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 662/3%
of the
principal amount of the Debentures then outstanding of each especially
Β
-
88 -
Β
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.
Β
12.16Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Binding Effect of
Resolutions
Β
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 12.15 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.
Β
12.17Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Evidence of Rights Of
Debentureholders
Β
|
Β
|
(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.
|
Β
|
Β
|
(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.
|
Β
12.18Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Concerning Serial
Meetings
Β
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 12.15, does not adversely affect the rights of the holders of Debentures
of one or more series, the provisions of this Article 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.
Β
ARTICLE
13
NOTICES
Β
13.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice to Trust
Β
Any
notice to the Trust under the provisions of this Indenture shall be valid and
effective if delivered to the Trust at: 000, 000 - 0xx
Xxxxxx
X.X., Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Xxxxxx Xxxxxx, President and Chief
Executive Officer of Vault Acquisition Inc., 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
Β
-
89 -
Β
thereafter,
until changed by like notice, shall be the address of the Trust for all purposes
of this Indenture.
Β
13.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice to
Debentureholders
Β
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.
Β
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 City of Calgary, each such publication to be made in a daily
newspaper of general circulation in such city.
Β
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.
Β
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.
Β
13.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Notice to Debenture
Trustee
Β
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:Β Β 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. The Debenture Trustee may from time to
time
notify the Trust in writing of a change of address which thereafter, until
changed by like notice, shall be the address of the Debenture Trustee for all
purposes of this Indenture.
Β
13.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Mail Service
Interruption
Β
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 13.1 or Section 13.3, as the case may be, such notice shall be valid
and
effective only if delivered at the appropriate address in accordance with
Section 13.1 or Section 13.3, as the case may be.
Β
-
90 -
Β
Β
ARTICLE
14
CONCERNING
THE DEBENTURE TRUSTEE
Β
14.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
No Conflict of Interest
Β
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, 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 14.2. Notwithstanding the forgoing, the parties hereto acknowledge
that
the Debenture Trustee may also act, from time to time, as trustee for certain
Senior Indebtedness of the Trust in addition to acting as Debenture Trustee
of
the Debentures.
Β
14.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Replacement of Debenture
Trustee
Β
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. 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 Justice of the Court of Queen's
Bench of Alberta, on such notice as such Justice 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 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.
Β
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
Β
-
91 -
Β
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.
Β
14.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Duties of Debenture
Trustee
Β
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.
Β
14.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Reliance Upon Declarations,
Opinions, etc.
Β
In
the exercise of its rights, duties and obligations hereunder the Debenture
Trustee may, if acting in good faith, act and 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
14.5, if applicable, and with any other applicable requirements of this
Indenture.Β Β The Debenture Trustee may nevertheless, in its discretion,
require further proof in cases where it deems further proof
desirable.Β Β Without restricting the foregoing, the Debenture Trustee
may act and 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.
Β
14.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Evidence and Authority to
Debenture Trustee, Opinions, etc.
Β
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 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, 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.
Β
Such
evidence shall consist of:
Β
-
92 -
Β
|
Β
|
(a)
|
a
certificate made by any one officer or director of the Administrator
on
behalf of the Trust, stating that any such condition precedent has
been
complied with in accordance with the terms of this Indenture;
|
Β
|
Β
|
(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
|
Β
|
Β
|
(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.
|
Β
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.
Β
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.
Β
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.
Β
-
93 -
Β
14.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Officer's Certificates
Evidence
Β
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.
Β
14.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Experts, Advisers and
Agents
Β
The
Debenture Trustee may:
Β
|
Β
|
(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 and relying,
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
|
Β
|
Β
|
(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 proper determination
and
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.
|
Β
14.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee May Deal
in
Debentures
Β
Subject
to Sections 14.1 and 14.3, 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.
Β
14.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Investment of Monies Held
by
Debenture Trustee
Β
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 maybe 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, the trustee is 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
Β
-
94 -
Β
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.
Β
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.
Β
The
Debenture Trustee may retain any cash balance held in connection with the
Indenture, and may, but need not, hold the same in its deposit department or
the
deposit department of one of its Affiliates; but the Debenture Trustee and
its
Affiliate shall not be liable to account for any profit to the Trust or any
other person or entity other than at a rate, if any, established from time
to
time by the Debenture Trustee or its Affiliates.
Β
For
the purpose of this Section, "Affiliate" means affiliated companies within
the
meaning of the Business
Corporations Act (Alberta), and "Authorized Investment" means short term
interest bearing or discount debt obligations issued or guaranteed by the
Government of Canada or a Province or a Canadian chartered bank (which may
include an Affiliate or related party of the Debenture Trustee).
Β
Unless
herein otherwise expressly provided, any of the funds held by the Debenture
Trustee may be deposited in a trust account in the name of the Debenture Trustee
(which may be held with the Debenture Trustee or an Affiliate or related party
of the Debenture Trustee), which account shall be non-interest bearing. Upon
the
written direction of the Trust, the Debenture Trustee shall invest in its name
such funds in Authorized Investments in accordance with such direction. Any
direction by the Trust to the Debenture Trustee as to the investment of the
funds shall be in writing and shall be provided to the Debenture Trustee no
later than 9:00 a.m. on the day on which the investment is to be made. Any
such
direction received by the Debenture Trustee after 9:00 a.m. or received on
a
non-Business Day, shall be deemed to have been given prior to 9:00 a.m. on
the
next Business Day.
Β
14.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee Not
Ordinarily Bound
Β
Except
as provided in Section 8.2 and as otherwise specifically provided herein, the
Debenture Trustee shall not, subject to Section 14.3, 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
12, 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.
Β
-
95 -
Β
14.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee Not Required
to Give Security
Β
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.
Β
14.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee Not Bound
to
Act on Trust's Request
Β
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.
Β
14.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Debenture Trustee Not Appointed
Receiver
Β
The
Debenture Trustee and any person related to the Debenture Trustee will not
be
appointed a receiver or receiver and manager or liquidator of all or any part
of
the assets or undertaking of the Trust.
Β
14.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Conditions Precedent to
Debenture Trustee's Obligations to Act Hereunder
Β
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.
Β
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.
Β
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.
Β
14.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Authority to Carry on
Business
Β
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 14.15, 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
Β
-
96 -
Β
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 14.2.
Β
14.16Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Compensation and
Indemnity
Β
|
Β
|
(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.
|
Β
|
Β
|
(b)
|
The
Trust hereby indemnifies and saves harmless the Debenture Trustee
and its
directors, officers, employees, agents and shareholders 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 the negligent failure to act, or the wilful default 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.
|
Β
|
Β
|
(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.
|
Β
14.17Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Acceptance of Trust
Β
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.
Β
-
97 -
Β
Β
ARTICLE
15
SUPPLEMENTAL
INDENTURES
Β
15.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Supplemental Indentures
Β
From
time to time the Debenture Trustee and, when authorized by a resolution of
the
directors of the Administrator 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:
Β
|
Β
|
(a)
|
providing
for the issuance of Additional Debentures under this Indenture;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(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;
|
Β
|
Β
|
(e)
|
giving
effect to any Extraordinary Resolution passed as provided in Article
12;
and
|
Β
|
Β
|
(f)
|
for
any other purpose not inconsistent with the terms of this Indenture.
|
Β
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 made 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 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
Β
-
98 -
Β
in
the opinion of the Debenture Trustee (relying upon an opinion of Counsel) the
rights, of the Debentureholders are in no way prejudiced thereby.
Β
15.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Regulatory Approvals
Β
Notwithstanding
anything to the contrary in this Indenture, so long as the Debentures are listed
and posted for trading on the Toronto Stock Exchange, no indentures supplemental
hereto or amendment to the terms of this Indenture may be made without the
consent of the Toronto Stock Exchange where the rules of the Toronto Stock
Exchange require such consent.
Β
ARTICLE
16
EXECUTION
AND FORMAL DATE
Β
16.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Execution
Β
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.
Β
16.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Contracts of the Trust
Β
The
parties hereto acknowledge that the obligations of the Trust hereunder shall
not
be personally binding upon the Administrator in its capacity as such or any
of
the holders of Units such that any recourse against the Trust, the trustee
or
the Administrator in its capacity as such or any holder of Units 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
agreement relates, if any, including without limitation claims based in
contract, on negligence, tortious behaviour or otherwise, shall be limited
to,
and satisfied only out of, the trust fund as defined in the trust indenture
dated as of April 25, 2005, as amended, restated or replaced from time to time,
relating to the Trust.
Β
16.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Formal Date
Β
For
the purpose of convenience this Indenture may be referred to as bearing the
formal date as appeared on the first page of this Indenture irrespective of
the
actual date of execution hereof.
Β
[Remainder
of this page intentionally
left blank]
Β
-
99 -
Β
IN
WITNESS whereof the parties hereto have executed these presents under their
respective corporate seals and the hands of their proper officers in that
behalf.
| Β |
VAULT
ENERGY TRUST, by its
|
|
| Β |
administrator,
VAULT ACQUISITION
|
|
| Β |
INC.
|
Β |
| Β | Β | Β |
| Β |
By:
|
"Signed"
|
| Β | Β |
Xxxxxx
Xxxxxx
|
| Β | Β |
President
and Chief Executive Officer
|
| Β | Β | Β |
| Β |
VAULT
ACQUISITION INC.
|
|
| Β | Β | Β |
| Β |
By:
|
"Signed"
|
| Β | Β |
Xxxxxx
Xxxxxx
|
| Β | Β |
President
and Chief Executive Officer
|
| Β | Β | Β |
| Β |
CANADIAN
WESTERN TRUST
|
|
| Β |
COMPANY
|
|
| Β | Β | Β |
| Β |
By::
|
"Signed"
|
| Β | Β |
Name:
Thaidra Xxxxx
|
| Β | Β |
Title:
Director Business Development
|
| Β | Β | Β |
| Β | Β |
"Signed"
|
| Β |
By:
|
Name:
J. Xxxxxxx Xxxx
|
| Β | Β |
Title:
Corporate & Group Services
|
Β
-
100 -
Β
SCHEDULE
"A"
Β
TO
THE TRUST INDENTURE BETWEEN
Β
VAULT
ENERGY TRUST
Β
AND
Β
VAULT
ACQUISITION INC.
Β
AND
Β
CANADIAN
WESTERN TRUST COMPANY
Β
FORM
OF DEBENTURE
Β
Β
Β
Β
SCHEDULE
"A"
Β
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.
Β
Unless
this certificate is presented by an authorized representative of The Canadian
Depository for Securities Limited ("CDS") to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate 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.
Β
| Β |
CUSIP
β’
|
|
No.
β’
|
$β’
|
Β
VAULT
ENERGY TRUST
Β
(A
trust governed by the laws of Alberta)
Β
8%
CONVERTIBLE UNSECURED SUBORDINATED
DEBENTURE
DUE
JUNE 30, 2010
Β
VAULT
ENERGY TRUST (the "Trust") for value received
hereby acknowledges itself indebted and, subject to the provisions of the trust
indenture (the "Indenture") dated as of April
β’, 2005 between the Trust, Vault Acquisition Inc. and Canadian Western Trust
Company (the "Debenture
Trustee"), promises to pay to the registered holder hereof on June 30,
2010 (the "Maturity
Date") or on such earlier date as the principal amount hereof may become
due in accordance with the provisions of the Indenture the principal sum of
β’
($β’) in lawful money of Canada on presentation and surrender of this Initial
Debenture at the main branch of the Debenture Trustee in Calgary, Alberta in
accordance with the terms of the Indenture and, subject as hereinafter provided,
to pay interest on the principal amount hereof from the Subscription Receipt
Closing Date, 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 8% 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. Should the Trust at any time default in the payment of any principal
or
interest, the Trust will pay interest on the amount in default at the same
rate,
in like money and on the same dates.
Β
A-1
Β
Interest
hereon shall be payable by cheque mailed by prepaid ordinary mail or by
electronic transfer of funds to the registered holder hereof and, subject to
the
provisions of the Indenture, the mailing of a cheque or electronic transfer
of
funds, as the case may be, for such interest shall, to the extent of the sum
represented thereby (plus the amount of any tax withheld), satisfy and discharge
all liability for interest on this Debenture.
Β
This
Debenture is one of the 8% Convertible Unsecured Subordinated Debentures
(referred to herein as the "Initial Debenture") 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 $55,000,000 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.
Β
The
Initial Debentures are issuable only in denominations of $1,000 and integral
multiples thereof. Upon compliance with the provisions of the Indenture, Initial
Debentures of any denomination may be exchanged for an equal aggregate principal
amount of Initial Debentures in any other authorized denomination or
denominations.
Β
The
whole, or if this Initial Debenture is a denomination in excess of $1,000,
any
part which is $1,000 or an integral multiple thereof, of the principal of this
Initial Debenture 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, 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 Units (without adjustment for interest accrued hereon
or
for dividends or distributions on Units. issuable upon conversion) at a
conversion price of $11.50 (the "Conversion Price") per Unit,
being a rate of approximately 87 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. No Debentures may be converted during the five
Business Days preceding and including June 30 and December 31 in each year,
as
the registrars of the Debenture Trustee will be closed during such periods.
The
Indenture makes provision for the adjustment of the Conversion Price in the
events therein specified. No fractional 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. Holders converting their Debentures will receive
accrued and unpaid interest thereon. If a Debenture is surrendered for
conversion on an Interest Payment Date or during the five preceding Business
Days, the Person or Persons entitled to receive Units in respect of the
Debenture so surrendered for conversion shall not become the holder or holders
of record of such Units until the Business Day following such Interest Payment
Date.
Β
This
Initial Debenture may be redeemed at the option of the holder thereof 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 June 30, 2008, except in the
Β
A-2
Β
event
of the satisfaction of certain conditions after a Change of Control has
occurred. Subsequent to June 30, 2008 and on or prior to June 30, 2009, the
Initial Debentures may be redeemed at the option of the holder thereof in whole
or in part from time to time at a Redemption Price equal to $1,050 per Initial
Debenture. In addition thereto, at the time of redemption, the Trust shall
pay
to the holder accrued and unpaid interest. On or after July 1, 2009 and prior
to
the Maturity Date for the Initial Debentures, the Initial Debentures may be
redeemed at the option of the holder thereof in whole or in part from time
to
time at a Redemption Price equal to $1,025 per Initial Debenture and, in
addition thereto, at the time of redemption, the Trust shall pay to the holder
accrued and unpaid interest. 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 Units obtained by dividing
the
applicable Redemption Price by 95% of the Current Market Price of the
Units.
Β
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 (if any) up to, but excluding, the date the Initial Debentures are
so
repurchased (the "Purchase
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 Purchase
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.
Β
If
an Offer for all of the outstanding Debentures, is made and 90% or more of
the
principal amount of all the Initial Debentures are taken up and paid for by
the
Offeror, the Offeror will be entitled to acquire, and the holders are required
to sell the Initial Debentures of those holders who did not accept the Offer
for
the same consideration per Debenture payable or paid, as the case may be, under
the Offer.
Β
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 Units obtained
by
dividing the principal amount of this Initial Debenture to be paid for in Units
pursuant to the exercise by the Trust of the Unit Repayment Right by 95% of
the
Current Market Price of the Units.
Β
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.
Β
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.
Β
A-3
Β
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.
Β
The
Indenture contains provisions disclaiming any personal liability on the part
of
holders of Units or the trustee, manager and other agents of the Trust in
respect of any obligation or claim arising out of the Indenture or this
Debenture.
Β
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 Calgary, Alberta 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.
Β
This
Initial Debenture shall not become obligatory for any purpose until it shall
have been certified by the Debenture Trustee under the Indenture.
Β
The
Indenture and this Debenture shall be governed by and construed in accordance
with the laws of the Province of Alberta and the laws of Canada applicable
therein.
Β
Capitalized
words or expressions used in this Initial Debenture shall, unless otherwise
defined herein, have the meaning ascribed thereto in the Indenture.
Β
IN
WITNESS WHEREOF VAULT ENERGY TRUST has caused this Debenture to be signed by
its
authorized representatives as of the β’ day of β’, 2005.
| Β | VAULT ENERGY TRUST, by its | |
| Β | administrator, VAULT ACQUISITION | |
| Β | INC. | |
| Β | Β | Β |
| Β | By: |
Β
|
| Β | Β |
Authorized
Signatory
|
Β
A-4
Β
Β
(FORM
OF DEBENTURE TRUSTEE'S CERTIFICATE)
Β
This
Initial Debenture is one of the 8% Convertible Unsecured Subordinated Debentures
due June 30, 2010 referred to in the Indenture within mentioned.
| Β | CANADIAN WESTERN TRUST | |
| Β | COMPANY | |
| Β | Β | Β |
| Β | By: |
Β
|
| Β | Β |
(Authorized
Signing Officer)
|
(FORM
OF REGISTRATION PANEL)
Β
(No
writing hereon except by Debenture Trustee or other registrar)
| Β | Β |
Signature
of Debenture Trustee or
|
|
Date
of Registration
|
In
Whose Name Registered
|
Registrar
|
| Β | Β | Β |
| Β | Β | Β |
| Β | Β | Β |
| Β | Β | Β |
| Β | Β | Β |
Β
A-5
Β
Β
FORM
OF ASSIGNMENT
Β
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 VAULT 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.
Β
|
Dated:
|
Β |
|
Address
of
Transferee:Β
|
Β | Β |
|
Β
|
Β |
Β (Xxxxxx
Xxxxxxx, Xxxx, Xxxxxxxx and Postal
Code)Β
|
| Β | Β | Β |
| Β | Β | Β |
|
Social
Insurance Number of Transferee, if
applicable:Β
|
Β | Β |
*If less than the full principal amount of the within Initial Debenture is to be transferred, indicate in the space provided the principal amount to be transferred (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).
Β
|
Β
|
1.
|
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 Schedule 1 Canadian chartered bank, major Canadian
trust
company or by a member of a recognized 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".
|
Β
|
Β
|
2.
|
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.
|
Β
Signature
of
Guarantor:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
| Β | Β | Β |
|
Authorized
Officer
|
Β |
Signature
of transferring registered holder
|
| Β | Β | Β |
| Β | Β | Β |
|
Name
of Institution
|
Β | Β |
Β
A-6
Β
Β
EXHIBIT
"1"
Β
TO
CDS GLOBAL DEBENTURE
Β
VAULT
ENERGY TRUST
Β
8%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
Β
DUE
JUNE 30, 2010
|
Initial
Principal Amount: $β’
|
CUSIP:
β’
|
Β
|
Authorization:
|
Β |
ADJUSTMENTS
| Β | Β |
Amount
of
|
New
Principal
|
Β |
|
Date
|
Amount
of Increase
|
Decrease
|
Amount
|
Authorization
|
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
| Β | Β | Β | Β | Β |
Β
A-7
Β
Β
SCHEDULE
"B"
Β
TO
THE TRUST INDENTURE BETWEEN
Β
VAULT
ENERGY TRUST
Β
AND
Β
VAULT
ACQUISITION INC.
Β
AND
Β
CANADIAN
WESTERN TRUST COMPANY
Β
FORM
OF REDEMPTION NOTICE
Β
Β
Β
Β
SCHEDULE
"B"
Β
Form
of Redemption Notice
Β
VAULT
ENERGY TRUST
Β
8%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
Β
REDEMPTION
NOTICE
To:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Vault Energy Trust (the "Trust")
Β
And
To:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Canadian Western Trust Company
Β 000,
000 - 0xx
Xxxxxx
X.X., Xxxxxxx, Xxxxxxx X0X 0X0
Β
Note:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
All capitalized terms used herein have the meaning ascribed thereto in the
Indenture mentioned below, unless otherwise indicated.
Notice
is hereby given pursuant to Section 4.3 of the trust indenture (the "Indenture") dated as of April
β’, 2005 between the Trust, Vault Acquisition Inc. and Canadian Western Trust
Company (the "Debenture
Trustee"), that the aggregate principal amount of $β’ of 8% Convertible
Unsecured Subordinated Debentures (the "Debentures") outstanding shall
be redeemed by the Trust 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) $β’ (the "Redemption Price"), and (ii)
all accrued and unpaid interest hereon to but excluding the Redemption Date
(collectively, the "Total
Redemption Price").
Β
The
Total Redemption Price shall be payable upon presentation and surrender of
the
Debentures to be redeemed, which are as follows
|
Debenture
Number
|
Principal
Amount ($)
|
Name
of Registered Holder
|
The
interest upon the principal amount of Debentures to be redeemed 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.
Β
B-1
Β
[The
undersigned acknowledges that, pursuant to Section 4.6 of the Indenture, the
Trust may elect to satisfy its obligation to pay to the holders of Debentures
$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
Units obtained by dividing such portion of the Redemption Price by 95% of the
then Current Market Price of the Units.]
Β
No
fractional 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
Units on the Redemption Date (less any tax required to be deducted, if
any).
Β
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 Units to which holders are entitled together
with the cash equivalent in lieu of fractional 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 Units,
cash representing the balance of the Redemption Price.
Β
DATED:
_________________________
| Β | Β |
| Β |
Name
of Debentureholder
|
| Β | Β |
| Β | Β |
| Β |
Signature
of Debentureholder
|
Β
B-2
Β
Β
SCHEDULE
"C"
Β
TO
THE TRUST INDENTURE BETWEEN
Β
VAULT
ENERGY TRUST ANDΒ Β
Β
VAULT
ACQUISITION INC. AND
Β
CANADIAN
WESTERN TRUST COMPANY
Β
FORM
OF MATURITY NOTICE
Β
Β
Β
Β
SCHEDULE
"C"
Β
Form
of Maturity Notice
Β
VAULT
ENERGY TRUST
Β
8%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
Β
MATURITY
NOTICE
Β
Β
|
To:
|
Holders
of 8% Convertible Unsecured Subordinated Debentures (the "Debentures") of Vault
Energy Trust (the "Trust")
|
Β
And
to:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Canadian
Western Trust Company (the "Debenture Trustee")
Β
|
Note:
|
All
capitalized terms used herein have the meaning ascribed thereto in
the
Indenture mentioned below, unless otherwise indicated.
|
Β
Notice
is hereby given pursuant to Section 4.10(b) of the trust indenture (the "Indenture") dated as of April
β’, 2005 between the Trust, Vault Acquisition Inc. and the Debenture Trustee
that
the Debentures are due and payable as of June 30, 2010 (the "Maturity Date")
and
the Trust elects to satisfy its obligation to pay to holders of Debentures
the
principal amount of all of the Debentures outstanding on the Maturity Date
by
[cash] [issuing and delivering to the holders that number of Freely Tradeable
Units equal to the number obtained by dividing such principal amount of the
Debentures by 95% of the Current Market Price of Units on the Maturity
Date].
Β
No
fractional 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 Units
on the Maturity Date (less any tax required to be deducted, if any).
Β
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 Units to which holders are entitled together
with the cash equivalent in lieu of fractional 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 Units, cash
representing the balance of the principal amount due on the Maturity
Date.
|
DATED:
|
VAULT ENERGY TRUST, by its | |
| Β | administrator, VAULT ACQUISITION | |
| Β | INC. | |
| Β | Β | Β |
| Β | By: |
Β
|
| Β | Β | Β |
Β
C-1
Β
Β
SCHEDULE
"D"
Β
TO
THE TRUST INDENTURE BETWEEN
Β
VAULT
ENERGY TRUST AND
Β
VAULT
ACQUISITION INC. AND
Β
CANADIAN
WESTERN TRUST COMPANY
Β
FORM
OF NOTICE OF CONVERSION
Β
Β
Β
SCHEDULE
"D"
Β
Form
of Notice of Conversion
Β
CONVERSION
NOTICE
Β
|
TO:
|
VAULT
ENERGY TRUST
|
Β
|
Note:
|
All
capitalized terms used herein have the meaning ascribed thereto in
the
Indenture mentioned below, unless otherwise indicated.
|
Β
The
undersigned registered holder of 8% Convertible Unsecured Subordinated
Debentures, bearing Certificate No. * irrevocably elects to convert $__________
principal amount* of such Debentures in accordance with the terms of the
Indenture referred to in such Debentures and tenders herewith the Debentures,
and, if applicable, directs that the Units of Vault Energy Trust issuable upon
a
conversion be issued and delivered to the Person indicated below. (If 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).
|
Dated:
|
Β | Β | Β |
| Β | Β | Β |
(Signature
of Registered Holder)
|
| Β | Β | Β | Β |
|
Β
|
*
|
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).
|
Β
|
Β
|
NOTE:
|
If
Units are to be issued in the name of a Person other than the holder,
the
signature must be guaranteed by a Schedule 1 Canadian chartered
bank, a
major Canadian trust company or by a member of a recognized Medallion
Guarantee Program. The Guarantor must affix a stamp bearing the
actual
words: "SIGNATURE
GUARANTEED".Β
|
Β
(Print
name in which Units are to be issued, delivered and registered)
Β
Name:
________________________________________Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β
_______________________________________
(Address)
Β
_______________________________________
(City,
Province and
Postal Code)Β
Name
of guarantor:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β
Authorized
signature:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β Β Β Β Β Β Β Β Β Β Β
Β
D-1
Β
Β
SCHEDULE
"E"
Β
TO
THE TRUST INDENTURE BETWEEN
Β
VAULT
ENERGY TRUST AND
Β
VAULT
ACQUISITION INC. AND
Β
CANADIAN
WESTERN TRUST COMPANY
Β
FORM
OF DECLARATION FOR REMOVAL OF LEGEND
Β
Β
Β
Β
SCHEDULE
"E"
Β
FORM
OF DECLARATION FOR REMOVAL OF LEGEND
Β
TO:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Canadian Western Trust Company, as trustee and registrar of the 8% Convertible
Unsecured Subordinated Debentures of Vault Energy Trust
Β
The
undersigned (a) acknowledges that the sale of the securities of Vault Energy
Trust (the "Trust") to
which this declaration relates its 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.
|
Dated:
|
Β | Β | By: |
Β
|
| Β | Β | Β | Β | Β |
| Β | Β | Β | Name: |
Β
|
| Β | Β | Β | Β | Β |
| Β | Β | Β | Title: |
Β
|
| Β | Β | Β | Β | Β |
E-1
Β
Β
