EXHIBIT 7.1
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UNIT PURCHASE AGREEMENT
THIS AGREEMENT made as of the 23rd day of September, 2007.
BETWEEN:
GOLDEN APPLE INCOME INC., a corporation incorporated
under the laws of Ontario
(hereinafter called "VENDOR")
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ONTARIO TEACHERS' PENSION PLAN BOARD, a non-share
capital corporation incorporated under the laws of
Ontario
(hereinafter called "GUARANTOR")
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TECK COMINCO METALS LTD., a corporation incorporated
under the laws of Canada
(hereinafter called "PURCHASER")
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TECK COMINCO LIMITED., a corporation incorporated
under the laws of Canada
(hereinafter called "TECK")
WITNESSES THAT in consideration of the respective covenants,
agreements, representations, warranties and indemnities herein contained and
for other good and valuable consideration (the receipt and sufficiency of which
are acknowledged by each party), the parties covenant and agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS
For the purpose of this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings set out below
and grammatical variations of such terms shall have corresponding meanings:
"ACTING JOINTLY OR IN CONCERT" has the meaning attributed to that phrase in the
SECURITIES ACT (Ontario);
"AFFILIATE" shall have the meaning attributed to that term in the SECURITIES
ACT (Ontario);
"BUSINESS DAY" means any day, other than a Saturday or a Sunday, on which banks
in Toronto, Ontario and Vancouver, British Columbia are open for business;
"CBCA" means the CANADA BUSINESS CORPORATIONS ACT, as amended;
"CLOSING DATE" means October 1, 2007;
"CONTRACT" means any agreement, indenture, contract, lease, deed of trust,
license, option, instrument or other commitment, whether written or oral;
"ENCUMBRANCE" means any encumbrance, lien, charge, hypothec, pledge, mortgage,
title retention agreement, security interest of any nature, adverse claim,
exception, reservation, easement, right of occupation, any matter capable of
registration against title, option, right of pre-emption, privilege or any
Contract to create any of the foregoing;
"PERSON" includes any individual, firm, partnership, joint venture, venture
capital fund, association, trust, trustee, executor, administrator, legal
personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, governmental entity, syndicate or
other entity, whether or not having legal status;
"PURCHASE PRICE" has the meaning set out in section 2.2;
"PURCHASED UNITS" has the meaning set out in section 2.1;
"TIME OF CLOSING" means 11:00 a.m. (Toronto time) on the Closing Date;
"TRANSFER" means, whether in one transaction or a series of related
transactions, to sell, assign, transfer or contribute or otherwise dispose of
any Units directly or indirectly or any interest, whether legal or beneficial,
in Units, whether voluntary, involuntary, by operation of law or otherwise, and
includes an agreement, commitment or understanding to effect any of the
foregoing provided that a transfer by the Purchaser to a wholly-owned Affiliate
of the Purchaser or Teck shall not be considered a "Transfer";
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"TRUST" means Fording Canadian Coal Trust, an open-ended mutual fund trust
existing under the laws of Alberta; and
"UNITS" means the units of the Trust and as same may be reorganized,
reclassified, exchanged or converted from time to time.
1.2 KNOWLEDGE
References in this Agreement to the "knowledge" of Vendor and Guarantor
mean the actual knowledge of Xxxxx X. Xxxxxx without further inquiry.
1.3 CURRENCY
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are expressed in Canadian dollars.
1.4 SECTIONS AND HEADINGS
The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and shall not affect the
interpretation of this Agreement. Unless otherwise indicated, any reference in
this Agreement to an Article, section, subsection or clause refers to the
specified Article, section, subsection or clause of this Agreement.
1.5 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There
are no conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise, relating to
the subject matter hereof except as herein provided.
1.6 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
1.7 APPLICABLE LAW
This Agreement shall be construed, interpreted and enforced in
accordance with, and the respective rights and obligations of the parties shall
be governed by, the laws of the Province of Ontario and the federal laws of
Canada applicable therein, and each party hereby irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of such
province and all courts competent to hear appeals therefrom.
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1.8 SUCCESSORS AND ASSIGNS
This Agreement shall enure to the benefit of and shall be binding on
and enforceable by the parties and, where the context so permits, their
respective successors and permitted assigns. No party may assign any of its
rights or obligations hereunder without the prior written consent of the other
parties.
1.9 AMENDMENT AND WAIVERS
No amendment or waiver of any provision of this Agreement shall be
binding on any party unless consented to in writing by such party. No waiver of
any provision of this Agreement shall constitute a waiver of any other
provision, nor shall any waiver constitute a continuing waiver, unless
otherwise expressly provided.
ARTICLE 2
PURCHASE AND SALE OF PURCHASED UNITS
2.1 PURCHASE AND SALE OF PURCHASED UNITS
Subject to the terms and conditions hereof, at the Time of Closing
Vendor hereby sells, assigns and transfers to Purchaser and Purchaser hereby
purchases from Vendor 16,650,000 issued and outstanding Units (the "PURCHASED
UNITS").
2.2 PURCHASE PRICE
The purchase price payable by Purchaser to Vendor for the Purchased
Units shall be Cdn$36.00 per Purchased Unit (THE "PURCHASE PRICE"). The
Purchase Price shall be payable at the Time of Closing by wire transfer of
immediately available funds to an account designated by the Vendor, which
payment shall constitute full discharge of the Purchase Price for the Purchased
Units.
2.3 ADJUSTMENT OF PURCHASE PRICE - PRICE PROTECTION
(a) If at any time on or prior to July 31, 2008 (the "PRICE
PROTECTION PERIOD"):
(i) Purchaser or any of its Affiliates or any Person acting
jointly or in concert with Purchaser makes an offer or
proposal to the Trust respecting, or publicly announces
an intention to undertake, an amalgamation or merger
with the Trust (or other similar transaction, including
without limitation a plan of arrangement), pursuant to
which Purchaser will directly, or indirectly through an
Affiliate, or any Person acting jointly or in concert
with Purchaser, combine its business with the business
of the Trust or directly or indirectly acquire (or
combine their assets or businesses or a material
portion thereof with) all or a majority portion of the
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business or assets of the Trust other than an Asset
Transaction (as defined below); or
(ii) Purchaser or any of its Affiliates or any Person acting
jointly or in concert with Purchaser makes an offer or
proposal to the Trust respecting, or publicly announces
an intention to undertake, a take-over bid by take-over
bid circular in compliance with applicable Canadian
securities laws, after giving effect to which
Purchaser, if successful, would beneficially own,
directly or indirectly, through an Affiliate, and
together with any Person acting jointly or in concert
with Purchaser, more than 50% of the Units;
(any such transaction being a "PRICE PROTECTION TRANSACTION")
then within five Business Days following the completion of the
Price Protection Transaction, Purchaser will pay, or cause an
Affiliate to pay, to an account designated by Vendor the
Adjustment Payment (as defined below), if applicable, by wire
transfer of immediately available funds.
(b) Vendor will be entitled to receive an additional amount on
account of each of the Purchased Units (the "ADJUSTMENT PAYMENT") equal to the
amount by which the consideration per Unit received by the holders of Units
pursuant to the Price Protection Transaction (the "GREATER PRICE") exceeds the
Purchase Price (all as adjusted for any Unit split or consolidation, Unit
dividend-in-kind, reorganization or similar event after the Closing Date).
(c) If all or any portion of the Greater Price is in the form of:
(i) cash, the consideration shall be valued at the face
value of the cash,
(ii) publicly traded securities, the consideration shall be
valued based on the closing price of such securities on
the date of the completion of the Price Protection
Transaction on the published market on which the
greatest volume of trading in such securities occurred
over the twenty trading days preceding such date,
(iii) securities that are not publicly traded until the date
of the completion of the Price Protection Transaction,
the consideration shall be valued based on the closing
price of such securities on the five trading days
following the completion of the Price Protection
Transaction on the published market on which the
greatest volume of trading in such securities occurred
over such period, or
(iv) any other consideration, the consideration shall be
valued at its fair market value as Vendor and Purchaser
shall mutually agree, acting reasonably.
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(d) If all or any portion of the consideration forming the Greater
Price has a value expressed in a currency other than Canadian dollars, then the
value of that consideration will be expressed in Canadian dollars based upon a
conversion rate of exchange equal to the noon spot rate quoted by the Bank of
Canada on the date of the completion of the Price Protection Transaction for
the purchase of Canadian dollars using the currency in which the consideration
(or portion thereof) was originally denominated.
(e) In the event of any disagreement between the parties with
respect to the calculation of the value of the Greater Price, the matter will
be submitted to an internationally recognized firm of chartered accountants to
be agreed upon by the parties, provided that such firm may not be the auditors
of either Vendor or Purchaser. The decision of such firm of chartered
accountants as to the value of the Adjustment Payment will be final and binding
on the parties, and the fees and expenses of such firm shall be borne equally
between the Vendor and the Purchaser.
(f) If the unitholders of the Trust approve an arrangement or
similar transaction involving the sale of all or a majority of the assets of
the Trust, directly or indirectly, to Purchaser or an affiliate of Purchaser or
any Person acting jointly or in concert with Purchaser or any other Person that
was announced or commenced during the Price Protection Period and that would
provide to the Trust consideration permitting the Trust to pay a distribution
per Unit in excess of $36.00 per Unit (an "ASSET TRANSACTION"), then within
five Business Days following approval of the Asset Transaction by the
unitholders of the Trust, receipt of all necessary third-party and regulatory
approvals and satisfaction of any other material conditions precedent to
completing the Asset Transaction, and in any event prior to the record date for
the distribution by the Trust of any of the proceeds of the Asset Transaction
to unitholders of the Trust, Purchaser will sell the Purchased Units to Vendor
for a price equal to the Purchase Price and otherwise on the terms set out in
this Agreement. If the record date for a full distribution of the proceeds of
the Asset Transaction in respect of the Purchased Units does not occur within
sixty days of Vendor purchasing the Purchased Units from Purchaser, Vendor
shall have the right (but not the obligation) exercisable within 20 Business
Days of the end of such sixty day period to require, on five days written
notice to the Purchaser, Purchaser to repurchase from Vendor the Purchased
Units for a price equal to the Purchase Price and otherwise on the terms set
out in this Agreement (provided that any such notice to the Purchaser must be
given not less than 20 Business Days in advance of any record date then
announced for a distribution by the Trust). Nothing in this section 2.3(f) is
intended to restrict Teck from effecting a Transfer of units to any Person
prior to the vote of Fording unitholders referred to above, provided that such
Transfer is subject to section 2.4, if applicable. It is the intent of this
Section 2.3(f) that Vendor should receive the economic benefit of an Asset
Transaction and should not be worse off than if the Asset Transaction had been
a Price Protection Transaction.
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2.4 TRANSFER PROTECTION
(a) If during the Price Protection Period the Purchaser or any
Affiliate or any Person acting jointly and in concert with the Purchaser
Transfers any Units for consideration in excess of the Purchase Price, within
five Business Days after the completion of the Transfer the Purchaser shall pay
to the Vendor in respect of each Transferred Unit the amount by which the
consideration received for each Transferred Unit exceeds the Purchase Price.
The obligations under this Section 2.4 shall be repeated with respect to each
Transfer of Units during the Price Protection Period but, except as provided
below, only until the Purchaser or its Affiliates or Persons acting jointly or
in concert with the Purchaser has Transferred Units equal in number to the
number of Purchased Units for consideration in excess of the Purchase Price.
(b) Within 30 days following the Price Protection Period, the
Purchaser shall provide to the Vendor a schedule detailing all Transfers made
during the Price Protection Period for prices in excess of the Purchase Price.
The aggregate amount previously paid to the Purchaser pursuant to this Section
2.4(b) shall be adjusted as follows: (a) Units Transferred during the Price
Protection Period at prices in excess of the Purchase Price shall be deemed to
have been Transferred in order of the highest to lowest consideration paid per
Unit; (b) if the (x) amount if any by which the aggregate consideration for up
to the first 16,650,000 Units so Transferred exceeds the Purchase Price
multiplied by the number of Units so Transferred; exceeds (y) the aggregate
amounts previously paid to the Purchaser pursuant to Section 2.4(b), such
excess amount shall be paid to the Purchaser within such 30-day period.
(c) The provisions of Sections 2.3 (c), (d) and (e) shall apply
MUTATIS MUTANDIS as regards determining the value of the consideration for the
Transferred Units. The reference in this Section 2.4 to dollar amounts and
Units shall be adjusted for any Unit split or consolidation, Unit
dividend-in-kind, reorganization or similar event after the Closing Date.
(d) If a Price Protection Transaction precedes a Transfer as
contemplated in Section 2.4, the reference in Section 2.4 to the Purchase Price
shall, in respect of all subsequent Transfers, be increased by an amount equal
to the Adjustment Payment. Similarly, if a Transfer as provided in Section 2.4
precedes a Price Protection Transaction, the Purchase Price for purposes of the
Price Protection Transaction shall be increased by an amount equal to the sum
obtained by dividing the aggregate amount paid to the Vendor pursuant to
Section 2.4 prior to the Price Protection Transaction by the number of
Purchased Units.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF VENDOR AND GUARANTOR
Vendor and Guarantor jointly and severally represent and warrant to
Purchaser as follows and acknowledge that Purchaser is relying on such
representations and warranties in connection with its purchase of the Purchased
Units:
3.1 ORGANIZATION
Vendor is a corporation validly existing under the laws of Ontario and
has the corporate power to enter into this Agreement and to perform its
obligations hereunder. Guarantor is a non-share capital corporation, validly
existing under the laws of Ontario, and has the corporate power to enter into
this Agreement and to perform its obligations hereunder.
3.2 AUTHORIZATION AND ENFORCEABILITY
This Agreement has been duly authorized, executed and delivered by
Vendor and Guarantor and is a legal, valid and binding obligation of Vendor and
Guarantor, enforceable against each of them by Purchaser in accordance with its
terms.
3.3 NO OTHER AGREEMENTS TO PURCHASE
No Person other than Purchaser has any written or oral agreement or
option or any right or privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement or option for the purchase or acquisition from
Vendor of any of the Purchased Units.
3.4 OWNERSHIP OF PURCHASED UNITS
Vendor is the beneficial owner of the Purchased Units, with good and
marketable title thereto, free and clear of all Encumbrances and, without
limiting the generality of the foregoing, none of the Purchased Units is
subject to any voting trust, shareholder agreement or voting agreement.
3.5 NO VIOLATION
The execution and delivery of this Agreement by Vendor and Guarantor
and the consummation of the transactions herein provided for will not result in
either:
(a) the breach or violation of any of the provisions of, or
constitute a default under, or conflict with or cause the acceleration of any
obligation of Vendor or Guarantor under:
(i) any Contract to which the Vendor or Guarantor is a
party and which is material to Vendor ;
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(ii) of any provisions of the constating documents, by-laws
or resolutions of the board of directors (or any
committee thereof) or shareholders of Vendor or
Guarantor;
(iii) any judgment, decree, order or award of any court,
governmental body or arbitrator having jurisdiction
over either of Vendor or Guarantor;
(iv) any license, approval, consent or authorization held by
Vendor or Guarantor in either case necessary for the
ownership of the Purchased Units; or
(v) any applicable law, statute, ordinance, regulation or
rule; or
(b) the creation or imposition of any Encumbrance on any of the
Purchased Units.
3.6 CONSENTS AND APPROVALS
There is no requirement for Vendor or Guarantor to make any filing
with, give any notice to or to obtain any license, permit, certificate,
registration, authorization, consent or approval of, any governmental or
regulatory authority as a condition to the lawful sale of the Purchased Units
as contemplated by this Agreement, but for an obligation of the Vendor under
section 107 of the Securities Act (Ontario) to file a report in respect of the
sale of the Purchased Units and an obligation of the Vendor and the Guarantor
to file with the United States Securities and Exchange Commission an Amendment
to their Statement on Schedule 13D with respect to the Purchased Units. There
is no requirement under any Contract relating to the Trust to which Vendor or
Guarantor is a party or by which Vendor or Guarantor is bound to give any
notice to, or to obtain the consent or approval of, any party to such
agreement, instrument or commitment relating to the sale of the Purchased Units
as contemplated by this Agreement.
3.7 CONTROL PERSON
The Vendor is not a Control Person, as that term is defined in the
SECURITIES ACT (Ontario), of the Trust.
3.8 WHOLLY-OWNED SUBSIDIARY
The Vendor is a wholly-owned subsidiary of Guarantor.
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3.9 NO ACTIONS, PROCEEDINGS
There is no action, proceeding or investigation (whether or not
purportedly on behalf of Vendor) pending or, to the knowledge of the Vendor,
threatened, against or affecting Vendor at law or in equity, before or by any
court or federal, provincial, municipal or other governmental department,
commission, board or agency, domestic or foreign, which questions the validity
of the purchase and sale of the Purchased Units pursuant to this Agreement or
any action taken or to be taken by Vendor pursuant to this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser and Teck represent and warrant to Vendor as follows and
acknowledge that Vendor is relying on such representations and warranties in
connection with its sale of the Purchased Units:
4.1 ORGANIZATION
Each of Purchaser and Teck is a corporation validly existing under the
laws of Canada and has the corporate power to enter into this Agreement and to
perform its obligations hereunder.
4.2 AUTHORIZATION
The transaction contemplated by this Agreement has been duly
authorized, and this Agreement to which it is a party have been duly executed
and delivered by Purchaser and Teck and are legal, valid and binding
obligations of Purchaser and Teck, enforceable against Purchaser and Teck by
Vendor in accordance with its terms.
4.3 NO VIOLATION
The execution and delivery of this Agreement by Purchaser and Teck and
the consummation of the transactions herein provided for will not result in the
breach or violation of any of the provisions of, or constitute a default under,
or conflict with or cause the acceleration of any obligation of Purchaser or
Teck under:
(i) any Contract to which Purchaser or Teck is a party and
which is material to Purchaser or Teck or by which it
is, or any of its material properties is, bound;
(ii) any provision of the constating documents, by-laws or
resolutions of the board of directors (or any committee
thereof) of Purchaser or Teck;
(iii) any judgment, decree, order or award of any court,
governmental body or arbitrator having jurisdiction
over Purchaser or Teck;
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(iv) any license, permit, approval, consent or authorization
held by Purchaser or Teck and necessary for the
completion of the transaction contemplated by this
Agreement or the operation of Purchaser's or Teck's
business; or
(v) any applicable law, statute, ordinance, regulation or
rule.
4.4 CONSENTS AND APPROVALS
There is no requirement for Purchaser or Teck to make any filing with,
give any notice to or to obtain any license, permit, certificate, registration,
authorization, consent or approval of, any governmental or regulatory authority
as a condition to the purchase of the Purchased Units, or the fulfillment by
Purchaser or Teck of the terms of this Agreement. Certain reports will be filed
by the Purchaser and Teck with securities regulatory authorities in Canada and
the United States after the fact. There is no requirement under any Contract to
which Purchaser or Teck is a party or by which it is bound to give any notice
to, or to obtain the consent or approval of, any party to such agreement,
instrument or commitment relating to the purchase of the Purchased Units by
Purchaser or Teck.
4.5 NO ACTIONS, PROCEEDINGS
There is no action, proceeding or investigation pending or, to the
actual knowledge of the senior officers of Teck without further inquiry,
threatened, against or affecting Purchaser or Teck, at law or in equity, before
or by any court or federal, provincial, municipal or other governmental
department, commission, board or agency, domestic or foreign.
4.6 OFFSHORE TRANSACTION
Purchaser was not at the time of the offer by the Vendor of the
Purchased Units, is not currently, and will not be at the Time of Closing a
resident of, or located in, the United States of America.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
To the extent that they have not been fully performed at or prior to
the Time of Closing, the covenants, representations and warranties of the
parties contained in this Agreement and any agreement, instrument, certificate
or other document executed or delivered pursuant hereto, except as otherwise
expressly provided in any agreement, instrument, certificate or other document
executed or delivered pursuant to this Agreement, shall survive the closing of
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the transactions contemplated hereby until the date which is 24 months from the
Closing Date and, notwithstanding such closing nor any investigation made by or
on behalf of Purchaser, shall continue in full force and effect for the benefit
of Purchaser, in respect of Vendor, and for Vendor in respect of Purchaser
during such period, except that:
(a) the representations and warranties set out in sections 3.1,
3.2, 3.3, 3.4, 4.1 and 4.2 shall survive and continue in full force and effect
without limitation of time; and
(b) a claim for any breach of any of the representations and
warranties contained in this Agreement or in any agreement, instrument,
certificate or other document executed or delivered pursuant hereto involving
fraud or fraudulent misrepresentation may be made at any time following the
Closing Date, subject only to applicable limitation periods imposed by law.
ARTICLE 6
CLOSING ARRANGEMENTS
6.1 PLACE OF CLOSING
The closing of the purchase and sale of the Purchased Units pursuant to
this Agreement shall take place at the Time of Closing at the offices of Lang
Xxxxxxxx LLP, counsel for Purchaser, BCE Place, Suite 2500 - 000 Xxx Xxxxxx,
Xxxxxxx, Xxxxxxx, X0X 0X0.
6.2 TRANSFER
At the Time of Closing, the following shall occur:
(a) Vendor shall execute and deliver to Purchaser all such
documents, certificates and instruments and do all such other acts and things
as Purchaser may consider necessary or desirable, acting reasonably, to
effectively transfer and assign the Purchased Units to Purchaser, with a good
and marketable title, free and clear of all Encumbrances, except as
contemplated by this Agreement, and to deliver possession thereof to Purchaser;
(b) Purchaser shall pay the Purchase Price to the Vendor.
6.3 FURTHER ASSURANCES
Each party to this Agreement covenants and agrees that, from time to time
subsequent to the Closing Date, it will, at the request and expense of the
requesting party, execute and deliver all such documents, including, without
limitation, all such additional conveyances, transfers, consents and other
assurances and do all such other acts and things as any other party hereto,
acting reasonably, may from time to time request be executed or done in order
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to better evidence or perfect or effectuate any provision of this Agreement or
of any agreement or other document executed pursuant to this Agreement or any
of the respective obligations intended to be created hereby or thereby.
ARTICLE 7
GUARANTEE
7.1 GUARANTEE
Guarantor hereby unconditionally guarantees in favour of the Purchaser the
obligations of Vendor hereunder.
Teck hereby unconditionally guarantees in favour of the Vendor the obligations
of Purchaser hereunder.
ARTICLE 8
MISCELLANEOUS
8.1 NOTICES
(a) Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be delivered in person,
transmitted by telecopy or similar means of recorded electronic communication
or sent by registered mail, charges prepaid, addressed as follows:
(i) if to Vendor:
Golden Apple Income Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: General Counsel
Telecopier No.: 000 000 0000
(ii) if to Purchaser:
Teck Cominco Metals Ltd.
Xxxxx 000, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Corporate Secretary
Telecopier No.: (000) 000-0000
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(iii) if to Teck:
Teck Cominco Limited
Xxxxx 000, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Corporate Secretary
Telecopier No.: (000) 000-0000
(iv) if to Guarantor:
Ontario Teachers' Pension Plan Board
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: General Counsel
Telecopier No.: 000 000 0000
(b) Any such notice or other communication shall be deemed to have
been given and received on the day on which it was delivered or transmitted
(or, if such day is not a Business Day, on the next following Business Day) or,
if mailed, on the third Business Day following the date of mailing; provided,
however, that if at the time of mailing or within three Business Days
thereafter there is or occurs a labour dispute or other event which might
reasonably be expected to disrupt the delivery of documents by mail, any notice
or other communication hereunder shall be delivered or transmitted by means of
recorded electronic communication as aforesaid.
(c) Any party may at any time change its address for service from
time to time by giving notice to the other parties in accordance with this
section 9.1.
8.2 COMMISSIONS. ETC.
Vendor agrees to indemnify and save harmless Purchaser from and against
all claims, damages and expenses suffered or incurred by Purchaser in respect
of any commission or other remuneration payable or alleged to be payable to any
broker, agent or other intermediary who purports to act or have acted for or on
behalf of Vendor.
Purchaser agrees to indemnify and save harmless Vendor from and against
all claims, damages and expenses suffered or incurred by Vendor in respect of
any commission or other remuneration payable or alleged to be payable to any
broker, agent or other intermediary who purports to act or have acted for or on
behalf of Purchaser.
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Each party shall be responsible for any expenses incurred by it in
connection with this Agreement and the sale and purchase of the Purchased Units
hereunder.
8.3 CONSULTATION
The parties shall consult with each other before issuing any press
release or making any other public announcement with respect to this Agreement
or the transactions contemplated hereby. The parties will use their respective
reasonable efforts not to issue any press releases or other public statements
inconsistent with the results of such consultation.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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8.4 COUNTERPARTS
This Agreement may be executed in counterparts, which may be delivered
by facsimile or email, and each of which shall constitute an original and all
of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
GOLDEN APPLE INCOME INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Vice President
ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
TECK COMINCO METALS LTD.
By: /s/ Xxxxx Rozee
--------------------------------
Name: Xxxxx Rozee
Title: Senior Vice President,
Commericial Affairs
TECK COMINCO LIMITED
By: /s/ Xxx Xxxxxx
--------------------------------
Name: Xxx Xxxxxx
Title: Senior Vice President, Finance,
Chief Financial Officer
