TRUST INDENTURE TIMBERWEST FOREST CORP. - and - VALIANT TRUST COMPANY Providing for the Issue of 9.0% Convertible Debentures due February 11, 2014 Dated February 11, 2009
ARTICLE 1 INTERPRETATION |
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1.1 Definitions |
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1.2 Meaning of “Outstanding” |
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1.3 Interpretation |
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1.4 Headings, etc. |
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1.5 Day not a Business Day |
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1.6 Applicable Law |
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1.7 Monetary References |
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1.8 Concerning Interest |
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1.9 Invalidity, etc. |
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1.10 Language |
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1.11 Successors and Assigns |
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1.12 Benefits of Indenture |
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ARTICLE 2 THE DEBENTURES |
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2.1 Unlimited Debentures |
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2.2 Form and Terms of Debentures |
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2.3 Interest on the Debentures |
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2.4 Certification and Delivery of Additional Debentures |
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2.5 Issue of Global Debentures |
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2.6 Execution of Debentures |
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2.7 Certification |
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2.8 Interim Debentures or Certificates |
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2.9 Mutilation, Loss, Theft or Destruction |
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2.10 Debentures to Rank Pari Passu |
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2.11 Payments of Amounts Due on Maturity |
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3.1 Fully Registered Debentures |
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3.2 Global Debentures |
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3.3 Transferee Entitled to Registration |
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3.4 No Notice of Trusts |
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3.5 Registers Open for Inspection |
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3.6 Exchanges of Debentures |
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3.7 Closing of Registers |
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3.8 Charges for Registration, Transfer and Exchange |
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3.9 Ownership of Debentures |
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3.10 Exchange of Private Debentures for Debentures |
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4.1 Redemption |
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4.2 Partial Redemption |
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4.3 Notice of Redemption |
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4.4 Debentures Due on Redemption Dates |
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4.5 Deposit of Redemption Monies |
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4.6 Failure to Surrender Debentures Called for Redemption |
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4.7 Cancellation of Debentures Redeemed |
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4.8 Purchase of Debentures by the Company |
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4.9 Change of Control |
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ARTICLE 5 SUBORDINATION OF DEBENTURES |
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5.1 Subordination to Senior Indebtedness |
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5.2 Subordination and Postponement of Notes |
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5.3 Secured Indebtedness |
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5.4 Order of Payment |
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5.5 Subrogation to Rights of Holders of Secured Indebtedness
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5.6 Obligation to Pay Not Impaired |
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5.7 No Payment if Secured Indebtedness in Default |
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5.8 Payment on Debentures Permitted |
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5.9 Confirmation of Subordination |
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5.10 Knowledge of Debenture Trustee |
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5.11 Debenture Trustee May Hold Secured Indebtedness |
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5.12 Rights of Holders of Secured Indebtedness Not Impaired |
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5.13 Altering the Secured Indebtedness |
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5.14 Additional Indebtedness |
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5.15 Right of Debentureholder to Convert Not Impaired |
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5.16 Invalidated Payments |
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5.17 Contesting Security |
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5.18 No Set-Off |
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5.19 Amendments to Article 5 |
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5.20 Liability and Actions of Debenture Trustee |
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ARTICLE 6 CONVERSION OF DEBENTURES |
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6.1 Conversion |
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6.2 Notice of Expiry of Conversion Privilege |
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6.3 Revival of Right to Convert |
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6.4 Manner of Exercise of Right to Convert |
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6.5 Adjustment of Conversion Price |
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6.6 Conversion Rights Adjustment Rules |
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6.7 Postponement of Issuance of Stapled Units |
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6.8 No Requirement to Issue Fractional Stapled Units |
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6.9 Company to Reserve Securities |
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6.10 Cancellation of Converted Debentures |
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6.11 Certificate as to Adjustment |
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6.12 Notice of Special Matters |
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6.13 Protection of Debenture Trustee |
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6.14 Legend on Stapled Units |
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7.1 To Pay Principal, Premium (if any) and Interest |
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7.2 To Pay Debenture Trustee’s Remuneration |
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7.3 To Give Notice of Default |
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7.4 Conduct of Business and Preservation of Existence |
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7.5 Keeping of Books |
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7.6 No Distributions on Stapled Units if Event of Default |
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7.7 Performance of Covenants by Company |
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7.8 Performance of Covenants by Debenture Trustee |
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7.9 Listing |
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8.1 Events of Default |
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8.2 Notice of Events of Default |
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8.3 Waiver of Default |
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8.4 Enforcement by the Debenture Trustee |
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8.5 No Suits by Debentureholders |
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8.6 Application of Monies by Debenture Trustee |
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8.7 Notice of Payment by Debenture Trustee |
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8.8 Debenture Trustee May Demand Production of Debentures |
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8.9 Remedies Cumulative |
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8.10 Judgment Against the Company |
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ARTICLE 9 SATISFACTION AND DISCHARGE |
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9.1 Cancellation and Destruction |
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9.2 Non-Presentation of Debentures |
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9.3 Repayment of Unclaimed Monies |
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9.4 Discharge |
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9.5 Satisfaction |
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9.6 Continuance of Rights, Duties and Obligations |
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10.1 Restrictions on Amalgamation, Merger and Sale of Certain
Assets, etc. |
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10.2 Vesting of Powers in Successor |
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ARTICLE 11 COMPULSORY ACQUISITION |
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11.1 Definitions |
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11.2 Offer for Debentures |
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11.3 Offeror’s Notice to Dissenting Shareholders |
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11.4 Delivery of Debenture Certificates |
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11.5 Payment of Consideration to Debenture Trustee |
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11.6 Consideration to be held in Trust |
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11.7 Completion of Transfer of Debentures to Offeror |
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11.8 Communication of Offer to Company |
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ARTICLE 12 MEETINGS OF DEBENTUREHOLDERS |
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12.1 Right to Convene Meeting |
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12.2 Notice of Meetings |
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12.3 Chairman |
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12.4 Quorum |
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12.5 Power to Adjourn |
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12.6 Show of Hands |
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12.7 Poll |
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12.8 Voting |
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12.9 Proxies |
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12.10 Persons Entitled to Attend Meetings |
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12.11 Powers Exercisable by Extraordinary Resolution |
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12.12 Meaning of “Extraordinary Resolution” |
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12.13 Powers Cumulative |
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12.14 Minutes |
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12.15 Instruments in Writing |
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12.16 Binding Effect of Resolutions |
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12.17 Evidence of Rights Of Debentureholders |
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ARTICLE 13 NOTICES |
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13.1 Notice to Company |
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13.2 Notice to Debentureholders |
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13.3 Notice to Debenture Trustee |
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13.4 Mail Service Interruption |
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ARTICLE 14 CONCERNING THE DEBENTURE TRUSTEE |
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14.1 No Conflict of Interest |
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14.2 Replacement of Debenture Trustee |
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14.3 Duties of Debenture Trustee |
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14.4 Reliance Upon Declarations, Opinions, etc. |
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14.5 Evidence and Authority to Debenture Trustee, Opinions, etc.
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14.6 Debenture Trustee May Rely on Certificate of the Company
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14.7 Experts, Advisers and Agents |
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14.8 Debenture Trustee May Deal in Debentures |
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14.9 Investment of Monies Held by Debenture Trustee |
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14.10 Debenture Trustee will Disburse Only Monies Deposited |
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14.11 Third Party Interests |
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14.12 Debenture Trustee Not Ordinarily Bound |
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14.13 Debenture Trustee Not Required to Give Security |
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14.14 Debenture Trustee Not Bound to Act on Company’s Request
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14.15 Debenture Trustee Not Bound to Act |
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14.16 Debenture Trustee Protected in Acting |
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14.17 Conditions Precedent to Debenture Trustee’s Obligations to
Act Hereunder |
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14.18 Authority to Carry on Business |
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14.19 Compensation and Indemnity |
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14.20 Acceptance of Trust |
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14.21 Privacy Laws |
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14.22 Withholding Obligation |
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ARTICLE 15 SUPPLEMENTAL INDENTURES |
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15.1 Supplemental Indentures |
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16.1 Execution |
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16.2 Formal Date |
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INTERPRETATION
1.1 | Definitions |
(a) | “this Indenture”, “this Trust Indenture”, “hereto”, “herein”, “hereby”, “hereunder”, “hereof” and similar expressions refer to this Indenture and not to any particular Article, Section, subsection, clause, subdivision or other portion hereof and include any and every instrument supplemental or ancillary hereto; | ||
(b) | “Additional Debentures” means, collectively, any Debentures from time to time issued at the Election of the Company as payment of the Interest Obligation in accordance with Section 2.3(b) and any Debentures issued from time to time to the holders of the Private Debentures upon the exchange of all or part of the outstanding principal amount of the Private Debentures for the same aggregate |
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principal amount of Additional Debentures so exchanged in accordance with the terms of the Investors’ Rights Agreement and Section 3.10; | |||
(c) | “Affiliate” has the meaning ascribed thereto in National Instrument 45-106 of the Canadian Securities Administrators; | ||
(d) | “Applicable Securities Legislation” means applicable securities laws (including rules, regulations, policies and instruments) in each of the Provinces of Canada; | ||
(e) | “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; | ||
(f) | “Business Day” means any day other than a Saturday, Sunday or a statutory holiday in the City of Vancouver, British Columbia; | ||
(g) | “Capital Reorganization” has the meaning ascribed thereto in Section 6.5(d); | ||
(h) | “Cash Distribution” means a distribution made in respect of the Stapled Units by the Company in the form of interest paid in cash on the Notes pursuant to the terms of the Note Indenture; | ||
(i) | “Certificate of the Company” means a written certificate signed by either the Chief Executive Officer or Chief Financial Officer of the Company; | ||
(j) | “Change of Control” means the occurrence of any of the following after the date hereof: |
(i) | the acquisition by any Person or one or more members of a group of Persons acting jointly or in concert, directly or indirectly, in a single transaction or a series of transactions, of beneficial ownership, voting control or direction over more than 50% of the aggregate voting rights attached to the Stapled Units then outstanding; | ||
(ii) | the acquisition by any Person (other than the Company or any of its wholly owned subsidiaries) or one or more members of a group of Persons acting jointly or in concert (other than a group consisting solely of two or more of the Company and any of its wholly-owned subsidiaries), directly or indirectly, in a single transaction or a series of transactions, of assets representing more than 50% of the book value (on a consolidated basis) of the assets of the Company, taken as a whole; or | ||
(iii) | the completion of a merger, amalgamation, arrangement or similar transaction which results in holders of the voting rights attached to the Stapled Units prior to the completion of the transaction holding less than 50% of the voting rights attached to the Stapled Units or other securities of the resulting entity after the completion of the transaction; |
(k) | “Change of Control Effective Date” means the effective date of a Change of Control; | ||
(l) | “Common Shares” means the common shares in the capital of the Company forming part of the Stapled Units, and “Common Share” means any one of them; | ||
(m) | “Company” means TimberWest Forest Corp. and includes any successor to or of the Company which shall have complied with the provisions of Article 10; | ||
(n) | “Company’s Auditors” or “Auditors of the Company” means an independent firm of chartered accountants duly appointed as auditors of the Company; | ||
(o) | “Conversion Notice” has the meaning ascribed thereto in Section 6.4(a); |
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(p) | “Conversion Price” means the dollar amount for which each Stapled Unit may be issued from time to time upon the conversion of Debentures in accordance with the provisions of Article 6; | ||
(q) | “Convertible Securities” means securities which by their terms are convertible into Stapled Units or any securities forming part of the Stapled Units; | ||
(r) | “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 Company and acceptable to the Debenture Trustee, acting reasonably; | ||
(s) | “CRA” means the Canada Revenue Agency; | ||
(t) | “Credit Agreement” means the loan agreement, made as of September 25, 2007, as it may be amended, restated and in effect from time to time (including, without limitation, as amended and restated by an agreement made as of February 11, 2009 to give effect to the Credit Amendments), entered into among the Senior Lenders, the Company and certain other Persons; | ||
(u) | “Credit Amendments” means the amendments to the Credit Agreement between the Company and the Senior Lenders, as more fully described in the Prospectus; | ||
(v) | “Current Market Price” means the Weighted Average Trading Price per Stapled Unit for the 20 consecutive trading days ending on the fifth trading day preceding the date of determination and, if no such price is available, “Current Market Price” will be the Fair Market Value per Stapled Unit; | ||
(w) | “Date of Conversion” has the meaning ascribed thereto in Section 6.4(b); | ||
(x) | “Debentureholders” or “holders” means the Persons for the time being entered in the register for Debentures as registered holders of Debentures or any transferees of such Persons by endorsement or delivery; | ||
(y) | “Debenture Liabilities” has the meaning ascribed thereto in Section 5.1; | ||
(z) | “Debentures” means the debentures designated as “9.0% Convertible Debentures” of the Company issued and certified hereunder, or deemed to be issued and certified hereunder, and for the time being outstanding, whether in definitive or interim form, and all references to “Debentures” herein, unless the context otherwise requires, shall be deemed to mean or include any Additional Debentures; | ||
(aa) | “Debenture Trustee” means Valiant Trust Company or its successor or successors for the time being as trustee hereunder; | ||
(bb) | “Depository” means, with respect to the Debentures issuable or issued in the form of one or more Global Debenture(s), the Person designated as depository by the Company pursuant to Section 2.5(a) until a successor depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depository” shall mean each Person who is then a depository hereunder, and if at any time there is more than one such Person, “Depository” as used with respect to the Debentures shall mean each depository with respect to the Global Debentures; | ||
(cc) | “Depository Participant” means a broker, dealer, bank, other financial institution or other Person for whom, from time to time, a Depository effects book entries for a Global Debenture deposited with the Depository; | ||
(dd) | “Designated Secured Indebtedness” means any of the following which are secured or intended to be secured by any lien on any property or asset of the Company or any of its subsidiaries: (i) the principal (including redemption payments), premium, if any, interest and other payment obligations in respect of (y) indebtedness of the Company or any of its subsidiaries for money borrowed and (z) |
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indebtedness evidenced by debentures, bonds, notes or other similar instruments issued by the Company or any of its subsidiaries, including any such securities issued under any indenture or other instrument to which the Company or any of its subsidiaries is a party (including, for the avoidance of doubt, indentures pursuant to which debentures have been or may be issued); (ii) all capital lease obligations of the Company; (iii) all obligations of the Company or any of its subsidiaries issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Company or any of its subsidiaries, all hedging agreements and agreements of a similar nature thereto and all agreements relating to any such agreements, and all obligations of the Company or any of its subsidiaries under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of the Company or any of its subsidiaries for the reimbursement of amounts paid pursuant to any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; (v) all obligations of the type referred to in clauses (i) through (iv) above of other persons for the payment of which the Company or any of its subsidiaries is responsible or liable as obligor, guarantor or otherwise, in each case which has been designated as Designated Secured Indebtedness by the Company in the agreement or instrument by which such Designated Secured Indebtedness is assumed, created or incurred by the Company or any of its subsidiaries or pursuant to which the liability of the Company or any of its subsidiaries for such Designated Secured Indebtedness arises, or by a resolution of the Directors. Designated Secured Indebtedness shall continue to be Designated Secured Indebtedness and be entitled to the benefits of the subordination provisions of this Trust Indenture irrespective of any amendment, modification or waiver of any term of such Designated Secured Indebtedness; | |||
(ee) | “Directors” means the directors of the Company on the date hereof or such directors as may, from time to time, be appointed directors of the Company, and “Director” means any one of them; | ||
(ff) | “Distributed Property” has the meaning ascribed thereto in Section 6.5(c); | ||
(gg) | “Election” has the meaning ascribed thereto in Section 2.3(b); | ||
(hh) | “Election Form” means the Form T2057 “Election on disposition of property by a taxpayer to a taxable Canadian corporation” attached as Exhibit “B” to Appendix “A” to the Conversion Notice; | ||
(ii) | “Election Notice” has the meaning ascribed thereto in Section 2.3(b); | ||
(jj) | “Event of Default” has the meaning ascribed thereto in Section 8.1; | ||
(kk) | “Extraordinary Resolution” has the meaning ascribed thereto in Section 12.12; | ||
(ll) | “Fair Market Value” means the fair market value as determined by the Company’s Auditors or, if the Company’s Auditors decline to make such valuation, such fair market value as determined by a firm of independent chartered accountants or a valuation firm that is mutually acceptable to the Company and the Debenture Trustee (the “Expert”). In such event, the Debenture Trustee, after receipt of the determination by the Expert, will have the right to select an additional expert (which will be a firm of independent chartered accountants or a valuation firm), in which case such fair market value will be deemed to equal the simple average of the values (or mid-point of the range of values) determined by each of the Expert and such additional expert; | ||
(mm) | “Freely Tradeable” means, in respect of securities of any corporation, those securities which: (i) are issued under a prospectus; or (ii) are issuable without the necessity of filing a prospectus or any other similar offering document (other than such prospectus or similar offering document that has already been filed) under Applicable Securities Legislation and can be traded by the holder thereof without any hold period under Applicable Securities Legislation, except in the case of a distribution by a control person (as such term is defined in the Applicable Securities Legislation) or from the holdings of any Person or combination of Persons holding a sufficient number of securities of that corporation to affect materially the control of that corporation; |
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(nn) | “Fully Registered Debentures” means Debentures registered as to both principal and interest; | ||
(oo) | “Global Debenture” means a Debenture that is issued to and registered in the name of the Depository, or its nominee, pursuant to Section 2.5 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; | ||
(pp) | “Government Obligation” means securities issued or guaranteed by the Government of Canada or any province thereof or a Canadian chartered bank as directed by the Company; | ||
(qq) | “Hedge Agreement” has the meaning ascribed thereto in the Credit Agreement; | ||
(rr) | “Intercreditor Agreement” means the intercreditor agreement, dated as of February 11, 2009, entered into among the Company, the Debenture Trustee, the Material Subsidiaries and the Senior Lenders; | ||
(ss) | “Intercreditor Arrangement” means any document, certificate or agreement, including any intercreditor or subordination agreement, as may reasonably be required by the Company and any Senior Lender to provide for the subordination of the Debenture Liabilities, in right of payment to the prior indefeasible payment and satisfaction in full of all indebtedness, liabilities and obligations to such Senior Lender incurred after the date hereof, all on terms substantially similar to the terms of the Intercreditor Agreement; | ||
(tt) | “Interest Obligation” means the obligation of the Company to pay interest on the Debentures, as and when the same becomes due; | ||
(uu) | “Interest Payment Date” means the 15th day of each of January, April, July and October in each calendar year, and for any particular Interest Period, the Interest Payment Date is the date falling on the 15th day of the first calendar month in the next succeeding Interest Period; | ||
(vv) | “Interest Period” means one of four periods of three consecutive months, being January, February and March; April, May and June; July, August and September; and October, November and December of each calendar year during the term of the Debentures; provided, however, that the initial Interest Period shall commence on the date of issue of the Debentures; | ||
(ww) | “Investment Agreement” means the investment agreement, dated December 12, 2008, entered into among the Company and the Purchasers; | ||
(xx) | “Investors’ Rights Agreement” means the investors’ rights agreement, dated February 11, 2009, entered into among the Company and the Purchasers; | ||
(yy) | “Maturity Account” means an account or accounts required to be established by the Company (and which shall be maintained by and subject to the control of the Debenture Trustee) for the Debentures pursuant to and in accordance with this Indenture; | ||
(zz) | “Maturity Date” has the meaning ascribed thereto in Section 2.2(c); | ||
(aaa) | “Material Subsidiaries” means TimberWest Holdings Ltd., TimberWest Forest Company, TimberWest Forest I Limited, TimberWest Forest II Limited, TimberWest Forest III Limited, TimberWest Forest IV Limited and Pacific Forest Products Limited, and “Material Subsidiary” means any one of them; | ||
(bbb) | “Minimum Exercise Price” means, at any time, the greater of (i) 85% of the Current Market Price at that time and (ii) the price which is at the maximum discount permitted at that time for the Stapled Units under the rules of the Principal Stock Exchange; |
(ccc) | “Note Deposit Agreement” means the note deposit agreement, dated September 30, 1998, as amended, supplemented and in effect from time to time, entered into among the Company and Valiant Trust Company, as custodian; | ||
(ddd) | “Note Indenture” means the note indenture, dated September 30, 1998, as amended, supplemented and in effect from time to time, entered into among the Company and the Note Trustee; | ||
(eee) | “Note Trustee” means Valiant Trust Company, or such other person serving as the trustee under the Note Indenture from time to time; | ||
(fff) | “Notes” means Series A subordinate, unsecured notes of the Company forming part of the Stapled Units and issued under and governed by the Note Indenture, and “Note” means any one of them; | ||
(ggg) | “Offer” has the meaning ascribed thereto in Section 4.9(i); | ||
(hhh) | “Offered Securities” has the meaning ascribed thereto in Section 6.5(b); | ||
(iii) | “Offering” means the rights offering to Unitholders of rights to purchase $50,000,000 in aggregate principal amount of Debentures under the Prospectus; | ||
(jjj) | “Person” means a natural person, partnership, limited partnership, company or corporation with or without share capital, joint stock company, trust, trustee, executor, administrator or other legal personal representative, unincorporated association, joint venture, syndicate, sole proprietorship or other entity or governmental authority, and pronouns have a similarly extended meaning; | ||
(kkk) | “Preferred Shares” means the preferred shares in the capital of the Company with a par value of $0.024456 per share forming part of the Stapled Units, and “Preferred Share” means any one of them; | ||
(lll) | “Principal Stock Exchange” means the Toronto Stock Exchange, and in the event the Stapled Units are not listed on the Toronto Stock Exchange but are listed or quoted on another stock exchange or market or stock exchanges or markets in Canada, the foregoing references to the Principal Stock Exchange will be deemed to be references to such other stock exchange or market or, if more than one, to such one as will be designated by the board of directors of the Company; | ||
(mmm) | “Priority Agreement” means the priority agreement, dated February 11, 2009, entered into among the Note Trustee and the Debenture Trustee; | ||
(nnn) | “Private Debentures” means the debentures designated as “9.0% Convertible Debentures” of the Company issued to the Purchasers pursuant to the Investment Agreement; | ||
(ooo) | “Proceedings” means any action, suit, remedy or proceeding (whether judicial or extra-judicial) against the Company or any of its subsidiaries, or any of their respective property, assets or undertaking, to collect or enforce payment of the principal of, premium, if any, and interest on any or all of the Debentures or any other amounts owing under the Debentures or this Trust Indenture or to enforce performance of any other covenants or obligations of the Company under this Trust Indenture or any or all of the Debentures (including, without limitation, any action or proceedings for payment under the Debentures, the appointment of a liquidator or receiver of the Company or any of its subsidiaries or any of its property, assets or undertaking or the winding up of the Company or any of its subsidiaries or any proceeding to petition the Company or any of its subsidiaries into bankruptcy); | ||
(ppp) | “Prospectus” means the Company’s short form prospectus dated December 23, 2008, relating to the Offering; |
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(qqq) | “Purchasers” means bcIMC (PPTW) Investment Corporation and bcIMC (WCBAF PPTW) Investment Corporation; | ||
(rrr) | “Receipts” means any of the receipts representing approximately $8.98 principal amount of the Notes issued under and governed by the Note Deposit Agreement, and “Receipt” means any one of them; | ||
(sss) | “Redemption Date” has the meaning ascribed thereto in Section 4.3; | ||
(ttt) | “Redemption Notice” has the meaning ascribed thereto in Section 4.3; | ||
(uuu) | “Rights Offering” has the meaning ascribed thereto in Section 6.5(b); | ||
(vvv) | “Secured Creditor” means the Person or Persons providing the Secured Indebtedness; | ||
(www) | “Secured Indebtedness” means any Senior Indebtedness that is not subject to the terms of the Intercreditor Agreement or any Intercreditor Arrangement, as the case may be; | ||
(xxx) | “Senior Indebtedness” means, at any particular time: |
(i) | the aggregate of: |
(A) | all outstanding borrowing by the Company under the Credit Agreement (including the face amount of bankers’ acceptances and the undrawn amount of letters of credit or guarantee); | ||
(B) | all obligations of the Company to any of the Senior Lenders under any Hedge Agreement; | ||
(C) | all interest (including interest on overdue interest) owing by the Company to any of the Senior Lenders under the Credit Agreement including outstanding stamping or acceptance fees and discounts in respect of bankers’ acceptances; | ||
(D) | all other fees, costs, expenses and other amounts payable to any Senior Lender or agent, under or pursuant to the Credit Agreement and any Hedge Agreement and any Senior Security in connection therewith; and | ||
(E) | the amount of all obligations of any Material Subsidiary under its respective guarantee of the obligations of the Company under the Credit Agreement and under any Hedge Agreement; |
(ii) | any indebtedness, liability or obligation (without limitation or restriction on the amount thereof) in respect of any instrument or document which contains express terms, or is issued under an indenture which contains express terms, providing that it ranks senior to the Debentures by reason of constituting a refinancing, refunding, replacement, restructuring, renewal or extension of any of the indebtedness, liabilities or obligations referred to in (i) above in whole or part; | ||
(iii) | Designated Secured Indebtedness; and | ||
(iv) | indebtedness of the Company or any of its subsidiaries represented by present or future encumbrances and leases of office equipment and vehicles in the ordinary course of business; |
(yyy) | “Senior Lenders” means the Person or Persons from time to time providing the Senior Indebtedness including, without limitation, any Agent of such Person or Persons and any Hedge Provider (as defined in the Credit Agreement); |
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(zzz) | “Senior Security” means all the security documents and agreements which may be provided to the Senior Lenders during the term of the Debentures from the Company or the Material Subsidiaries or otherwise for the purpose of securing the Senior Indebtedness; | ||
(aaaa) | “Special Distribution” has the meaning ascribed thereto in Section 6.5(c); | ||
(bbbb) | “Stapled Unit Reorganization” has the meaning ascribed thereto in Section 6.5(a); | ||
(cccc) | “Stapled Units” means the stapled units of the Company consisting of, on the date of execution and delivery of this Indenture, one Common Share, 100 Preferred Shares and a Receipt; provided that in the event of a change or a subdivision, redivision, reduction, combination or consolidation thereof (or of any of the components thereof), any reclassification, capital reorganization, consolidation, amalgamation, arrangement, 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, “Stapled Units” shall mean the stapled units of the Company or other securities or property (including cash) resulting from such change, subdivision, redivision, reduction, combination or consolidation, reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, sale or conveyance or liquidation, dissolution or winding-up or such other similar transaction, and “Stapled Unit” means any one of them; | ||
(dddd) | “subsidiary” means, with respect to any Person, any other Person in respect of which such first mentioned Person possesses, directly or indirectly, the power to vote more than 50% of the outstanding voting securities of such person, or otherwise direct the management or policies of such person, by contract or otherwise and “subsidiaries” means all of such Persons collectively; | ||
(eeee) | “Tax Act” means the Income Tax Act (Canada) and the regulations thereunder, as amended from time to time; | ||
(ffff) | “Time of Expiry” has the meaning ascribed thereto in Section 6.1; | ||
(gggg) | “Total Offer Price” has the meaning ascribed thereto in Section 4.9(i); | ||
(hhhh) | “trading day” means, with respect to the Principal Stock Exchange, any day on which such exchange or market is open for trading or quotation; | ||
(iiii) | “United States” means the United States of America, its territories and possessions, any state of the United States and the District of Columbia; | ||
(jjjj) | “Unitholders” means the holders from time to time of the Stapled Units; | ||
(kkkk) | “Weighted Average Trading Price” means, with respect to the Stapled Units during a specified period, the price determined by dividing the aggregate sale price of all Stapled Units sold on the Principal Stock Exchange during such period by the total number of Stapled Units so sold during such period; and | ||
(llll) | “Written Direction of the Company” means an instrument in writing signed by any one of the Chief Executive Officer or Chief Financial Officer of the Company. |
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(a) | Debentures which have been partially redeemed, purchased or converted shall be deemed to be outstanding only to the extent of the unredeemed, unpurchased or unconverted part of the principal amount thereof; | ||
(b) | when a new Debenture has been issued in substitution for a Debenture which has been lost, stolen or destroyed, only one of such Debentures shall be counted for the purpose of determining the aggregate principal amount of Debentures outstanding; and | ||
(c) | for the purposes of any provision of this Indenture entitling holders of outstanding Debentures to vote, sign consents, requisitions or other instruments or take any other action under this Indenture, or to constitute a quorum of any meeting of Debentureholders, Debentures owned directly or indirectly, legally or equitably, by the Company or a subsidiary of the Company shall be disregarded except that: |
(i) | for the purpose of determining whether the Debenture Trustee shall be protected in relying on any such vote, consent, requisition or other instrument or action, or on the holders of Debentures present or represented at any meeting of Debentureholders, only the Debentures which the Debenture Trustee knows are so owned shall be so disregarded; | ||
(ii) | Debentures so owned which have been pledged in good faith other than to the Company or a subsidiary of the Company 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, her or its discretion free from the control of the Company or a subsidiary of the Company; and | ||
(iii) | Debentures so owned shall not be disregarded if they are the only Debentures outstanding. |
(a) | words importing the singular number or masculine gender shall include the plural number or the feminine or neuter genders, and vice versa; | ||
(b) | all references to Articles and Schedules refer, unless otherwise specified, to articles of and schedules to this Indenture; | ||
(c) | all references to Sections refer, unless otherwise specified, to sections, subsections or clauses of this Indenture; and | ||
(d) | words and terms denoting inclusiveness (such as “include” or “includes” or “including”), whether or not so stated, are not limited by and do not imply limitation of their context or the words or phrases which precede or succeed them. |
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(a) | The Debentures authorized for issuance hereunder shall be designated as “9.0% Convertible Debentures”. | ||
(b) | The Debentures shall be dated as of the date of the closing of the Offering, or such other date of issuance as provided herein, and will be issuable only in denominations of $100 and integral multiples thereof, except that any Additional Debentures issued pursuant to Section 2.3(b) will be issuable only in denominations of $1 and integral multiples thereof. | ||
(c) | The Debentures shall mature on February 27, 2009, provided that if the Credit Amendments are effective on or prior to 4:30 p.m. (Vancouver time) on February 27, 2009, the date of maturity of the Debentures (the “Maturity Date”) will be automatically extended from February 27, 2009 to February 11, 2014 without any further act or formality on the part of the Company or the Debenture Trustee. The Company will announce by press release the effectiveness of the Credit Amendments and confirmation of the Maturity Date and will provide a copy thereof to the Debenture Trustee in accordance with Section 13.3. | ||
(d) | The principal amount outstanding under the Debentures, plus all accrued and unpaid interest to, but excluding, the Maturity Date, will be payable on the Maturity Date in lawful money of Canada to the Debenture Trustee in accordance with Section 2.11. | ||
(e) | Each Debenture and the certificate of the Debenture Trustee endorsed thereon shall be issued in substantially the form set out in Schedule “A”, with such insertions, omissions, substitutions or other variations as shall be required or permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto or with any rules or regulations of any securities exchange or securities regulatory authority or to conform with general usage, all as may be determined by the director or officer of the Company executing such Debenture in accordance with Section 2.6 hereof, as conclusively evidenced by his or her execution of a Debenture. Each Debenture shall additionally bear such distinguishing letters and numbers as the Debenture Trustee shall approve. Notwithstanding the foregoing, the Debentures may be in such other form or forms as may, from time to time, be approved by a resolution of the Directors or as specified in a Certificate of the Company and as the Debenture Trustees shall approve. The Debentures may be engraved, lithographed, printed, mimeographed or typewritten or partly in one form and partly in another. The Debentures shall be issued as Fully Registered Debentures and as one or more Global Debenture(s). No Beneficial Holder will receive definitive certificates representing his, her or its 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. | ||
(f) | The Company shall provide the Debenture Trustee with the documents and instruments referred to in Section 2.4 with respect to any Additional Debentures prior to the issuance of such Additional Debentures. |
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(a) | The principal amount of the Debentures outstanding will bear interest from and including the date of issue, both before and after the Maturity Date, calculated and payable with respect to the preceding Interest Period in cash quarterly in arrears on each Interest Payment Date, at the rate of 9% per annum, to, but excluding, the earlier of: (i) the date of conversion of the Debentures, in full, pursuant to Article 6; (ii) the date of redemption of the Debentures, in full, pursuant to Article 4; and (iii) the date the principal amount and all accrued and unpaid interest under the Debentures is repaid in full. The first Interest Payment Date for the Debentures issued on the closing of the Offering will be April 15, 2009. | ||
(b) | Notwithstanding Section 2.3(a), if the Company does not make a Cash Distribution pursuant to the Note Indenture with respect to the prior interest period under the Note Indenture that corresponds to the same Interest Period under the Debentures, the Company may, subject to regulatory approval, elect (the “Election”), in lieu of paying interest in cash, to satisfy the Interest Obligation payable for such Interest Period by issuing to each Debentureholder appearing on the registers maintained by the Debenture Trustee at the close of business on the last Business Day of the applicable Interest Period such principal amount of Additional Debentures equal to the amount of the Interest Obligation (less any tax required by law to be deducted, if any), which amount will be rounded down to the nearest multiple of $1, and delivering to each Debentureholder, in the same manner as contemplated in Section 2.3(e) with respect to the payment of interest, the certificate representing such Additional Debentures. The Company will make an Election by delivering written notice (the “Election Notice”) to the Debenture Trustee at least 21 days prior to the Interest Payment Date. The Election Notice will include a calculation of the amount of the Interest Obligation for such Interest Period and the principal amount of Additional Debentures to be issued and delivered to the Debentureholders in accordance with this Section 2.3. | ||
(c) | The Additional Debentures issued to the holders of the Debentures in accordance with Section 2.3(b) will be subject to the terms of this Indenture. | ||
(d) | No fractional Additional Debentures shall be delivered to the holders of the Debentures by the Company upon an Election to issue and deliver Additional Debentures in satisfaction of the Interest Obligation and the holders of Debentures will not be entitled to receive a cash payment in respect of any fractional interest in Additional Debentures. | ||
(e) | The following provisions shall apply to the payment of interest in cash on the Debentures, except as otherwise specified in a resolution of the Directors, a Certificate of the Company or a supplemental indenture: |
(i) | As interest becomes due on the Debentures (except at maturity, on conversion or on redemption, when interest is paid only upon surrender of such Debentures, unless otherwise determined by the Company) the Company, 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 last Business Day of the applicable Interest Period 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 Business Days prior to each Interest Payment Date 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 Interest Payment Date. 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 |
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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 Company 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 Company 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 Company may make payment of such interest or make such interest available for payment in any other manner acceptable to the Debenture Trustee with the same effect as though payment had been made in the manner provided above. |
(ii) | Notwithstanding Section 2.3(e)(i), if Debentures are represented by a Global Debenture, then all payments of interest on the Global Debenture (less applicable withholding taxes, if any) shall be made by electronic funds transfer or cheque made payable to the Depository or its nominee for subsequent payment to Beneficial Holders of interests in that Global Debenture, unless the Company and the Depository otherwise agree. None of the Company, 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. |
(f) | The delivery of the Additional Debentures to the Debenture Trustee in accordance with this Section 2.3 will satisfy and discharge the liability of the Company for any Interest Obligation payable for such Interest Period that is related to the delivery of such Additional Debentures. |
(a) | a Certificate of the Company by or pursuant to which the form and terms of such Additional Debentures were established; | ||
(b) | a Written Direction of the Company requesting certification and delivery of such Additional Debentures and setting forth delivery instructions; | ||
(c) | an opinion of Counsel, in form and substance satisfactory to the Debenture Trustee, acting reasonably, to the effect that all requirements imposed by this Indenture or by law in connection with the proposed issue of Additional Debentures have been complied with, subject to the delivery of certain documents or instruments specified in such opinion; and | ||
(d) | a Certificate of the Company certifying that the Company is not in default under this Indenture, that the terms and conditions for the certification and delivery of the Additional Debentures have been complied with, subject to the delivery of any documents or instruments specified in such Certificate of the Company, and that no Event of Default exists or will exist upon such certification and delivery. |
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(a) | The Company may specify that the Debentures are to be issued in whole or in part as one or more Global Debenture(s) registered in the name of a Depository, or its nominee, designated by the Company in the Written Direction of the Company delivered to the Debenture Trustee at the time of issue of such Debentures, and in such event the Company shall execute and the Debenture Trustee shall certify and deliver one or more Global Debenture(s) that shall: |
(i) | represent an aggregate amount equal to the principal amount of the outstanding Debentures to be represented by one or more Global Debenture(s); | ||
(ii) | be delivered by the Debenture Trustee to such Depository or pursuant to such Depository’s instructions; and | ||
(iii) | bear a legend substantially to the following effect: | ||
“This Debenture is a Global Debenture within the meaning of the Trust Indenture dated as of February 11, 2009 between TimberWest Forest Corp. and Valiant Trust Company (the “Indenture”) 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.” |
(b) | Each Depository designated for a Global Debenture must, at the time of its designation and at all times while it serves as such Depository, be a clearing agency registered or designated under the securities legislation of the jurisdiction where the Depository has its principal offices. |
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(a) | With respect to Debentures issuable as Fully Registered Debentures, the Company shall cause to be kept by and at the principal offices of the Debenture Trustee in Vancouver and Calgary 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 unless a new Debenture shall be issued upon such transfer. | ||
(b) | No transfer of a Fully Registered Debenture shall be valid unless made on such register referred to in Section 3.1(a) by the registered holder or such holder’s executors, administrators or other legal representatives or an attorney duly appointed by an instrument in writing in form and execution satisfactory to the Debenture Trustee 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 may prescribe, nor unless the name of the transferee shall have been noted on the Debenture by the Debenture Trustee. |
(a) | With respect to Debentures issuable in whole or in part as one or more Global Debenture(s), the Company shall cause to be kept by and at the principal offices of the Debenture Trustee in Vancouver and Calgary 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 are at any time not Global Debentures, the provisions of Section 3.1 shall govern with respect to registrations and transfers of such Debentures. | ||
(b) | Notwithstanding any other provision of this Indenture, a Global Debenture may not be transferred by the registered holder thereof and accordingly, no definitive certificates shall be issued to Beneficial Holders of Debentures except in the following circumstances or as otherwise specified in a resolution of the Directors, Certificate of the Company or supplemental indenture: |
(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; | ||
(ii) | Global Debentures may be transferred at any time after the Depository for such Global Debentures (i) has notified the Debenture Trustee, or the Company 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 2.5(b), provided in each case that at the time of such transfer the Company has not appointed a successor Depository for such Global Debentures; |
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(iii) | Global Debentures may be transferred at any time after the Company 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; | ||
(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 issued as a Global Debenture, provided that Beneficial Holders of the Debentures representing, in the aggregate, not less than 25% of the aggregate principal amount of the Debentures advise the Depository in writing, through the Depository Participants, that the continuation of the book-entry only registration system for the 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; | ||
(v) | Global Debentures may be transferred if required by applicable law; or | ||
(vi) | Global Debentures may be transferred if the book-entry only registration system ceases to exist. |
(c) | With respect to the Global Debentures, unless and until definitive certificates have been issued to Beneficial Holders pursuant to subsection 3.2(b): |
(i) | the Company and the Debenture Trustee may deal with the Depository for all purposes (including paying interest on the Debentures) as the sole holder of such Debentures and the authorized representative of the Beneficial Holders; | ||
(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; | ||
(iii) | the Depository will make book entry transfers among the Depository Participants; and | ||
(iv) | whenever this Trust 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. |
(d) | Whenever a notice or other communication is required to be provided to Debentureholders, unless and until definitive certificate(s) have been issued to Beneficial Holders pursuant to this Section 3.2, the Debenture Trustee shall provide all such notices and communications to the Depository and the Depository shall deliver such notices and communications to such Beneficial Holders in accordance with 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 the Debentures issued hereunder, the Debenture Trustee shall notify all applicable Beneficial Holders, through the Depository of the availability of definitive Debenture certificates. Upon surrender by the Depository of the certificate(s) representing the Global Debentures and receipt of new registration instructions from the Depository, the Debenture Trustee shall deliver the definitive Debenture certificates for such Debentures to the holders thereof in accordance with the new registration instructions and thereafter, the registration and transfer of such Debentures will be governed by Section 3.1 and the remaining Sections of this Article 3. |
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(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 date of maturity, bearing the same interest rate and of the same aggregate principal amount as the Debentures so exchanged. | ||
(b) | In respect of exchanges of Debentures permitted by Section 3.6(a), Debentures may be exchanged only at the principal offices of the Debenture Trustee in Vancouver and Calgary or at such other place or places, if any, as may be specified in the Debentures and at such other place or places as may from time to time be designated by the Company with the approval of the Debenture Trustee. Any Debentures tendered for exchange shall be surrendered to the Debenture Trustee. The Company shall execute and the Debenture Trustee shall certify all Debentures necessary to carry out exchanges as aforesaid. All Debentures surrendered for exchange shall be cancelled. | ||
(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. |
(a) | Neither the Company nor the Debenture Trustee nor any registrar shall be required to make transfers or exchanges or effect any conversions of any Debentures on the day of any selection by the Company of Debentures to be redeemed. | ||
(b) | Subject to any restriction herein provided, the Company with the approval of the Debenture Trustee may at any time close any register for the Debentures, other than those kept at the principal offices of the Debenture Trustee in Vancouver and Calgary, and transfer the registration of any Debentures registered thereon to another register (which may be an existing register) and thereafter such Debentures shall be deemed to be registered on such other register. Notice of such transfer shall be given to the holders of such Debentures. |
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(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; | ||
(b) | for any exchange of any interim or temporary Debenture or interim certificate that has been issued under Section 2.8 for a definitive Debenture; | ||
(c) | for any exchange of a Global Debenture as contemplated in Section 3.2; | ||
(d) | for any exchange of any Debenture resulting from a partial redemption under Section 4.2; | ||
(e) | for any exchange of any Debenture resulting from a partial conversion under Section 6.4(c); or | ||
(f) | for any exchange of any Debenture resulting from a partial purchase under Section 4.9. |
(a) | Unless otherwise required by law, the person in whose name any registered Debenture is registered shall for all the purposes of this Indenture be and be deemed to be the owner thereof and payment of or on account of the principal of and premium, if any, on such Debenture and interest thereon shall be made to such registered holder. | ||
(b) | Neither the Company nor the Debenture Trustee shall have any liability for: |
(i) | any aspect of the records relating to the beneficial ownership of the Debentures held by a Depository or of the payments relating thereto; or | ||
(ii) | maintaining, supervising or reviewing any records relating to such Debentures. |
The rules governing Depositories provide that they act as the agent and depository for Depository Participants. As a result, such Depository Participants must look solely to the Depository and Beneficial Holders of Debentures must look solely to the Depository Participants for the payment of principal and interest on the Debentures paid by or on behalf of the Company to the Depository. |
(c) | Beneficial Holders of Debentures: |
(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. |
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(d) | The registered holder from time to time of any registered Debenture shall be entitled to the principal, premium, if any, and/or interest evidenced by such instruments, respectively, free from all equities or rights of set-off or counterclaim between the Company and the original or any intermediate holder thereof and all Persons may act accordingly and the receipt of any such registered holder for any such principal, premium or interest shall be a good discharge to the Company and/or the Debenture Trustee for the same and neither the Company nor the Debenture Trustee shall be bound to inquire into the title of any such registered holder. | ||
(e) | Where Debentures are registered in more than one name, the principal, premium, if any, and interest from time to time payable in respect thereof may be paid to the order of all such holders, failing written instructions from them to the contrary, and the receipt of any one of such holders therefor shall be a valid discharge to the Debenture Trustee, any registrar and to the Company. | ||
(f) | In the case of the death of one or more joint holders of any Debenture the principal, premium, if any, and interest from time to time payable thereon may be paid to the order of the survivor or survivors of such registered holders and the receipt of any such survivor or survivors therefor shall be a valid discharge to the Debenture Trustee and any registrar and to the Company. |
(a) | the Weighted Average Trading Price per Stapled Unit for the 30 consecutive trading days ending on a date that is no more than 10 Business Days prior to the date of the Redemption Notice is greater than 200% of the Conversion Price; and | ||
(b) | no Event of Default has occurred and is continuing. |
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(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); | ||
(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; | ||
(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 Company; and | ||
(d) | in all cases, the principal amounts of such Debentures or, if any such Debenture is to be redeemed in part only, the principal amount of such part. |
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(i) | Within 30 days following the Change of Control Effective Date, the Company shall deliver to the Debenture Trustee, and the Debenture Trustee shall promptly deliver to the holders of the 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 Debentures made in accordance with the requirements of Applicable Securities Legislation at a price equal to 110% of the principal amount thereof plus accrued and unpaid interest, if any, on such Debentures up to, but excluding, the date of acquisition by the Company of such Debentures (collectively, the “Total Offer Price”) which Offer shall, unless otherwise provided under Applicable Securities Legislation, be open for acceptance thereof for a period of not less than 30 days and not more than 60 days and shall provide for payment to all Debentureholders who accept the Offer not later than the 60th day after the making of the Offer. To accept the Offer, a Debentureholder must deliver to the Debenture Trustee written notice of such acceptance, together with the Debentures tendered for purchase pursuant to the Offer, or accept the Offer in such manner as is specified in the Offer. Such Offer shall be irrevocable. | ||
(ii) | If 90% or more in aggregate principal amount of Debentures outstanding on the date of the Change of Control Notice and the Offer have been tendered for purchase pursuant to the Offer on the expiration thereof, the Company 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 Debentures remaining outstanding on the expiration of the Offer at the Total Offer Price (the “90% Redemption Right”). | ||
(iii) | Upon receipt of notice that the Company has exercised or is exercising the 90% Redemption Right and is acquiring the remaining Debentures, the Debenture Trustee shall promptly provide written notice to each Debentureholder that did not previously accept the Offer that: |
(A) | the Company has exercised the 90% Redemption Right and is purchasing all outstanding 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; | ||
(B) | each such holder must transfer his, her or its Debentures to the Debenture Trustee on the same terms as those holders that accepted the Offer and must send his, her or its respective Debentures, duly endorsed for transfer, to the Debenture Trustee within 10 days after the sending of such notice; and | ||
(C) | the rights of such holder under the terms of the Debentures and this Indenture cease to be effective as of the date of expiry of the Offer provided the Company 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 |
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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 Debentures in accordance with the Indenture. |
(iv) | The Company shall, on or before 11:00 a.m. (Vancouver 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 Debentures to be purchased or redeemed by the Company on the expiry of the Offer, provided the Company 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 bankers’ 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 Section 4.9(iv). The Company 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 Debentures, less applicable withholding taxes, the Total Offer Price to which they are entitled on the Company’s purchase or redemption. | ||
(v) | In the event that one or more of such Debentures being purchased in accordance with this Section 4.9 becomes subject to purchase in part only, upon surrender of such Debentures for payment of the Total Offer Price, the Company 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 portion of the principal amount of the Debentures not purchased. | ||
(vi) | Debentures for which holders have accepted the Offer and Debentures which the Company has elected to redeem in accordance with this Section 4.9 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 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 Debentures shall have been deposited as provided in this Section 4.9 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 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. | ||
(vii) | In case the holder of any Debenture to be purchased or redeemed in accordance with this Section 4.9 shall fail on or before the date of expiry of the Offer to so surrender such holder’s 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 Debenture. | ||
(viii) | Subject to the provisions above related to Debentures purchased in part, all Debentures redeemed and paid under this Section 4.9 shall forthwith be delivered to the Debenture Trustee and cancelled and no Debentures shall be issued in substitution therefor. |
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(i) | to Senior Indebtedness, to the extent and in the manner set forth in the Intercreditor Agreement or any Intercreditor Arrangement; and | ||
(ii) | to Secured Indebtedness, to the extent and in the manner set forth in this Article 5. |
(a) | all Secured Indebtedness shall first be paid in full in cash (or as otherwise agreed by the Secured Creditors in respect of the Secured Indebtedness), or provision made for such payment in full in cash (or as otherwise agreed by the Secured Creditors in respect of the Secured Indebtedness), before any payment is made on account of Debenture Liabilities; | ||
(b) | any payment or distribution of assets of the Company, whether in cash, property or securities, to which the holders of the Debentures or the Debenture Trustee on behalf of such holders would be entitled except for the provisions of this Article 5, shall be paid or delivered by the trustee in bankruptcy, receiver, assignee for the benefit of creditors, or other liquidating agent making such payment or distribution, directly to the holders of Secured Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Secured Indebtedness may have been issued, to the extent necessary to pay all Secured Indebtedness in full in cash (or as otherwise agreed by the Secured Creditors in respect of the Secured Indebtedness) after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Secured Indebtedness; and |
(c) | the Secured Creditors or a receiver or a receiver-manager of the Company or of all or part of its assets or any other enforcement agent may sell, mortgage, or otherwise dispose of the Company 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. |
(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 security for the Secured Indebtedness; | ||
(ii) | the time or order of the attachment, perfection or crystallization of any security constituted by the security for the Secured Indebtedness; | ||
(iii) | the taking of any collection, enforcement or realization proceedings pursuant to the security for the Secured Indebtedness; | ||
(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 Secured Creditors, or any of them or the Debentureholders or other trustee or any of them to any money or property of the Company; | ||
(v) | the failure to exercise any power or remedy reserved to the Secured Creditors under the security for the Secured Indebtedness or to insist upon a strict compliance with any terms thereof; | ||
(vi) | whether any security for the Secured Indebtedness 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; | ||
(vii) | the date of giving or failing to give notice to or making demand upon the Company; or | ||
(viii) | any other matter whatsoever. |
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(a) | The holder of Debentures desiring to convert all or any part of the outstanding principal amount of such Debentures, plus accrued and unpaid interest on such principal amount to but excluding the Date of Conversion, into Stapled Units shall surrender such Debentures to the Debenture Trustee at its principal offices in Vancouver or Calgary together with the conversion form attached hereto as Schedule “C” (the “Conversion Notice”) or any other written notice in a form satisfactory to the Debenture Trustee and, unless the Company notifies the Debentureholder otherwise, Appendix “A” to the Conversion Notice completed in accordance with the provided instructions, both duly executed by the holder or his, her or its executors or administrators or other legal representatives or his, her or their attorney duly appointed by an instrument in writing in form and executed in a manner satisfactory to the Debenture Trustee, exercising his, her or its right to convert such Debentures in accordance with the provisions of this Article; provided that with respect to a Global Debenture, the obligation to surrender Debentures 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 his, her or its nominee(s) or assignee(s), 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, shall be entitled to be entered in the books of the Company on the Date of Conversion, provided that the register of Stapled Units is open on that date (or such later date as is specified in Section 6.4(b)), as the holder of the number of Stapled Units into which such Debenture is convertible, net of applicable withholding taxes, if any, in accordance with the provisions of this Article and, as soon as practicable thereafter, the Company shall deliver to such Debentureholder or, subject as aforesaid, his, her or its nominee(s) or assignee(s), a certificate or certificates representing the securities constituting such Stapled Units and make or cause to be made any payment in respect of fractional Stapled Units as provided in Section 6.8. | ||
(b) | For the purposes of this Article, the Debentures shall be deemed to be surrendered for conversion on the date (herein called the “Date of Conversion”) on which they are 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 in respect of which the Debenture Trustee received notice of and all necessary documentation in connection with 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 Section 6.4(a); provided that if Debentures are surrendered |
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for conversion on a day on which the register of Stapled Units is closed, the Person or Persons entitled to receive Stapled Units shall become the holder or holders of record of such Stapled Units as at the date on which such registers are next reopened. |
(c) | The holder of any Debentures of which only a part is converted shall, upon the exercise of his, her or its right of conversion, surrender such Debentures to the Debenture Trustee, and 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 Debentures of the principal amount thereof so converted. | ||
(d) | The Stapled 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 Stapled 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 Stapled Units. | ||
(e) | In order to convert part or all of the outstanding principal amount of Debentures, plus accrued and unpaid interest thereon, into Stapled Units, the Debentureholder must, unless the Company notifies the Debentureholder otherwise, provide to the Company, with the conversion form or notice specified in Section 6.4(a), Appendix “A” to the Conversion Notice completed in accordance with the provided instructions to permit the Company to complete the Election Form and execute and file the Election Form with the CRA so that a joint election of the Debentureholder and the Company can be made under the provisions of Section 85 of the Tax Act in respect of the conversion. The Company is hereby irrevocably appointed (and the successive respective holders of the Debentures by taking and holding the same shall be conclusively deemed to have so appointed the Company) the true and lawful attorney-in-fact of the Debentureholder converting such principal amount of Debentures and such accrued and unpaid interest with authority on behalf of the Debentureholder (i) to complete the Election Form as required under Section 85 of the Tax Act in such manner as to deem the proceeds of disposition of the principal amount of the Debentures and all accrued and unpaid interest on such principal amount for the purposes of the Tax Act on the conversion to be equal to the fair market value of the principal amount of the Debentures and accrued and unpaid interest so converted at the time of the conversion, as determined by the Company and (ii) to execute and file such Election Form with the CRA. The Company will deliver a copy of the signed Election Form to the Debentureholder, in the manner provided in Section 13.2, after the Election Form has been filed with the CRA. |
(a) | If, prior to the Time of Expiry, the Company: |
(i) | issues any of its securities, other than rights, options or warrants, to all or substantially all holders of the Stapled Units by way of a stock dividend or interest or distributions; | ||
(ii) | subdivides its outstanding Stapled Units into a greater number of Stapled Units; or | ||
(iii) | combines or consolidates its outstanding Stapled Units into a smaller number of Stapled Units, |
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(A) | the numerator of which is the number of Stapled Units outstanding immediately prior to giving effect to such Stapled Unit Reorganization; and | ||
(B) | the denominator of which is the number of Stapled Units outstanding after giving effect to the Stapled Unit Reorganization. |
(b) | If, prior to the Time of Expiry, the Company sets a record date for the issuance of rights, options or warrants to all or substantially all holders of Stapled Units, entitling them, for a period expiring not more than 45 days after the record date, to subscribe for or purchase Stapled Units or Convertible Securities (the “Offered Securities”) at a price per Offered Security (or having a conversion price per such security) less than the Minimum Exercise Price as at the record date (the issuance of any such rights, options or warrants being a “Rights Offering”), then the Conversion Price will be adjusted effective immediately after the record date so that it will equal the price determined by multiplying the Conversion Price in effect on the record date by a fraction: |
(A) | the numerator of which will be the number of Offered Securities outstanding on the record date plus a number of Offered Securities equal to the number arrived at by dividing the aggregate price of the total number of additional Offered Securities offered for subscription or purchase (or the aggregate conversion price of the Convertible Securities so offered) by the Current Market Price on the record date; and | ||
(B) | the denominator of which will be the number of Offered Securities outstanding on the record date plus the total number of additional Offered Securities offered by subscription or purchase (or into which the Convertible Securities so offered are convertible). |
(c) | If, prior to the Time of Expiry, the Company issues or distributes to all or substantially all holders of Stapled Units, (i) securities of any kind other than Offered Securities, or (ii) rights, options or warrants (other than pursuant to a stock option plan or share purchase plan or other employment incentive and other than rights, options or warrants exercisable not more than 45 days from the date of issue to purchase Offered Securities at a price per security equal to or greater than the Minimum Exercise Price or to purchase Convertible Securities having a conversion price per Offered Security equal to or greater than the Minimum Exercise Price), or (iii) evidences of indebtedness, or (iv) any other assets (excluding cash dividends or cash distributions) (in each case, the “Distributed Property”) and, in any of those cases, the issuance or distribution does not constitute a Stapled Unit Reorganization or is not a distribution to which Section 6.5(b) applies (any of such events being herein called a “Special Distribution”), then the Conversion Price will be adjusted effective immediately after the record date so that it will equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction: |
(A) | the numerator of which will be the number of Stapled Units outstanding on the record date multiplied by the Current Market Price on the record date, less the Fair Market Value of the Distributed Property; and |
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(B) | the denominator of which will be the number of Stapled Units outstanding on the record date multiplied by such Current Market Price. |
(d) | If, prior to the Time of Expiry, there is a reorganization of the Company not otherwise provided for in Section 6.5(a) or a consolidation or merger or amalgamation of the Company with or into another body corporate or an arrangement or similar transaction of or relating to the Company (any such event being herein called a “Capital Reorganization”), then the Debentureholder will be entitled to receive and will accept, upon the exercise of such right of conversion of any remaining principal amount of and accrued and unpaid interest on the Debentures at any time after the effective date of such Capital Reorganization, in lieu of the number of Stapled Units to which the Debentureholder was previously entitled upon that conversion, the aggregate number of shares or other securities or property (including cash) of the Company, or of such continuing or successor corporation or of any other Person under the Capital Reorganization, that the Debentureholder would have been entitled to receive as a result of such Capital Reorganization if, on the effective date thereof, the Debentureholder had been the holder of the number of Stapled Units to which immediately before such transaction the Debentureholder was entitled upon conversion of the remaining principal amount of and accrued and unpaid interest on the Debentures. No such Capital Reorganization will be carried into effect unless all necessary steps will have been taken so that the Debentureholder will thereafter be entitled to receive such number of securities or property (including cash) of the Company, or of such continuing or successor corporation or of any other Person under the Capital Reorganization, subject to adjustment thereafter in accordance with provisions the same, as nearly as may be possible, as those contained in this Section 6.5 and Section 6.6. | ||
(e) | If, prior to the Time of Expiry, the Company pays any cash dividend or cash distribution to all holders of the Stapled Units in excess of the rate of interest payable on the Notes in accordance with their terms, then the Conversion Price in effect at the time of such payment will be reduced, but not below zero, by the amount per Stapled Unit of such excess. |
(a) | any Stapled Units owned by or held for the account of the Company, if any, will be deemed not to be outstanding for the purpose of any computation pursuant to Section 6.5; | ||
(b) | the adjustments and readjustments provided for in Section 6.5 are cumulative and, subject to Section 6.6(c), apply (without duplication) to successive issues, subdivisions, combinations, consolidations, distributions and any other events which require adjustment of the Conversion Price or the number or kind of securities issuable hereunder; | ||
(c) | no adjustment in the Conversion Price will be required unless such adjustment would result in a change of at least 1% in the Conversion Price then in effect, provided however, that any adjustments which, except for the provisions of this Section 6.6(c) would otherwise have been required to be made, will be carried forward and taken into account in any subsequent adjustment; | ||
(d) | no adjustment in the Conversion Price will be made in respect of any event described in Section 6.5 if the Debentureholders are entitled to participate in such event on the same terms, mutatis mutandis, as |
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(e) | no adjustment in the Conversion Price will be made pursuant to Section 6.5 in respect of the issue of Stapled Units pursuant to: |
(i) | the Debentures or Convertible Securities existing as of the issue date of the Debentures, including the Private Debentures; or | ||
(ii) | any stock option or purchase plan for officers, employees or directors of the Company outstanding or in existence as at the date hereof; |
(f) | if a dispute arises with respect to adjustments of the Conversion Price, such dispute will be conclusively determined by the Company’s Auditors or if they are unable or unwilling to act, by such firm of independent chartered accountants as may be selected by the board of directors of the Company and acceptable to the Debenture Trustee, acting reasonably, and any such determination will be binding upon the Debenture Trustee, the Debentureholders, the Company and all transfer agents and all securityholders of the Company; and | ||
(g) | if the Company sets a record date to determine holders of Stapled Units for the purpose of entitling them to receive any dividend or distribution or any subscription or purchase rights and thereafter legally abandons its plans to pay or deliver such dividend, distribution or subscription or purchase rights, then no adjustment in the Conversion Price will be required by reason of the setting of such record date. |
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(a) | shall not at any time be under any duty or responsibility to any Debentureholder to determine whether any facts exist which may require any adjustment in the Conversion Price, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same; | ||
(b) | shall not be accountable with respect to the validity or value (or the kind or amount) of any Stapled Units or of any Stapled Units, shares or other securities or property which may at any time be issued or delivered upon the conversion of any Debenture; and | ||
(c) | shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver Stapled Units or certificates for the securities constituting the Stapled Units upon the surrender of any Debenture for the purpose of conversion, or to comply with any of the covenants contained in this Article. |
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(a) | if default occurs in the payment of any principal, interest or other amounts payable under the Debentures, and remains unremedied for 10 days; | ||
(b) | if a default occurs in performance of any covenant or obligation due under the Debentures, and remains unremedied for a period of 30 days; | ||
(c) | if an event of default occurs in payment or performance of any obligation as a result of which an indebtedness of the Company or any of its subsidiaries in excess of $10,000,000 becomes or is declared to be due and payable by the Company or such subsidiary (including the Note Indenture but only after the expiry of the “Remedy Blockage Period”, as defined in the Note Indenture, with respect thereto), prior to the date on which it would otherwise become or be due and payable, and such acceleration is not rescinded within a period of 10 days; or | ||
(d) | the Company (or a Material Subsidiary except where all or part of the undertaking or assets of such Material Subsidiary are transferred to the Company, another Material Subsidiary or to another |
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subsidiary of the Company): (i) becomes insolvent or generally not able to pay its debts as they become due, (ii) admits in writing its inability to pay its debts generally or makes a general assignment for the benefit of creditors; (iii) institutes or has instituted against it any proceeding seeking (x) to adjudicate it a bankrupt or insolvent, (y) liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or relief of debtors including any plan of compromise or arrangement or other corporate proceeding involving or affecting its creditors, or (z) the entry of an order for relief or the appointment of a receiver, trustee or other similar official regarding all or substantially all of its assets, and in the case of any such proceeding instituted against it (but not instituted by it), either the proceeding remains undismissed or unstayed for a period of 30 days, or any of the actions sought in such proceeding (including the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it regarding all or substantially all of its assets) occurs, or (iv) takes any corporate action to authorize any of the above actions. |
(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 a majority of the principal amount of Debentures then outstanding, to instruct the Debenture Trustee to waive any Event of Default and to cancel any declaration made by the Debenture Trustee pursuant to Section 8.1 and the Debenture Trustee shall thereupon waive the Event of Default and cancel such declaration upon such terms and conditions as shall be prescribed in such requisition; and | ||
(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 |
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have power to waive any Event of Default if, in the Debenture Trustee’s opinion, based on the advice of counsel, 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. |
(a) | Subject to the provisions of Section 8.3, the provisions of any Extraordinary Resolution that may be passed by the Debentureholders, the Intercreditor Agreement and, if applicable, any Intercreditor Arrangement, if the Company 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. | ||
(b) | 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 Company or its creditors or relative to or affecting its property. The Debenture Trustee is hereby irrevocably appointed (and the successive respective holders of the Debentures by taking and holding the same shall be conclusively deemed to have so appointed the Debenture Trustee) the true and lawful attorney-in-fact of the respective holders of the Debentures with authority to make and file in the respective names of the holders of the Debentures or on behalf of the holders of the Debentures as a class, subject to deduction from any such claims of the amounts of any claims filed by any of the holders of the Debentures themselves, any proof of debt, amendment of proof of debt, claim, petition or other document in any such proceedings and to receive payment of any sums becoming distributable on account thereof, and to execute any such other papers and documents and to do and perform any and all such acts and things for and on behalf of such holders of the Debentures, as may be necessary or advisable in the opinion of the Debenture Trustee, in order to have the respective claims of the Debenture Trustee and of the holders of the Debentures against the Company 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. | ||
(c) | 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. | ||
(d) | 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 |
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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. |
(a) | Except as herein otherwise expressly provided, any monies received by the Debenture Trustee from the Company pursuant to the foregoing provisions of this Article 8, or as a result of legal or other proceedings or from any trustee in bankruptcy or liquidator of the Company, shall be applied, together with any other monies in the hands of the Debenture Trustee available for such purpose, as follows: |
(i) | first, in payment or in reimbursement to the Debenture Trustee of its compensation, costs, charges, expenses, borrowings, advances or other monies furnished or provided by or at the instance of the Debenture Trustee in or about the execution of its trusts under, or otherwise in relation to, this Indenture, with interest thereon as herein provided; | ||
(ii) | second, but subject as hereinafter in this Section 8.6 provided, in payment, rateably and proportionately to (and in the case of applicable withholding taxes, if any, on behalf of) the holders of Debentures, of the principal of and premium (if any) and accrued and unpaid interest and interest on amounts in default on the Debentures which shall then be outstanding in the priority of principal first and then premium and then accrued and unpaid interest and interest on amounts in default unless otherwise directed by Extraordinary Resolution and in that case in such order or priority as between principal, premium (if any) and interest as may be directed by such resolution; and | ||
(iii) | third, in payment of the surplus, if any, of such monies to the Company or its assigns; |
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(b) | The Debenture Trustee shall not be bound to apply or make any partial or interim payment of any monies coming into its hands if the amount so received by it, after reserving 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. |
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(a) | the Company shall be entitled to pay or deliver to the Debenture Trustee and direct it to set aside; or | ||
(b) | in respect of monies in the hands of the Debenture Trustee which may or should be applied to the payment of the Debentures, the Company shall be entitled to direct the Debenture Trustee to set aside; or | ||
(c) | if the redemption was pursuant to notice given by the Debenture Trustee, the Debenture Trustee may itself set aside; |
(a) | The Company shall be deemed to have fully paid, satisfied and discharged all of the outstanding Debentures and the Debenture Trustee, at the expense of the Company, 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 either: |
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(i) | the Company 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 sufficient to pay, satisfy and discharge the entire amount of principal, premium, if any, and interest, if any, to maturity or any repayment date or Redemption Dates, as the case may be, of such Debentures; or | ||
(ii) | the Company has deposited or caused to be deposited with the Debenture Trustee as property in trust for the purpose of making payment on such Debentures: |
(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 | ||
(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; |
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 or Redemption Dates, as the case may be, of all such Debentures; |
and in either event: |
(iii) | the Company 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 | ||
(iv) | the Company has delivered to the Debenture Trustee a Certificate of the Company stating that all conditions precedent herein provided relating to the payment, satisfaction and discharge of all such Debentures have been complied with. |
Any deposits with the Debenture Trustee referred to in this Section 9.5 shall be irrevocable, subject to Section 9.6, and shall be made under the terms of an escrow and/or trust agreement in form and substance satisfactory to the Debenture Trustee and which provides for the due and punctual payment of the principal of, and interest and premium, if any, on the Debentures being satisfied. | |||
(b) | Upon the satisfaction of the conditions set forth in this Section 9.5 with respect to all the outstanding Debentures, 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 and Article 4 and the provisions of Article 1 pertaining to the foregoing provisions) shall no longer be binding upon or applicable to the Company. | ||
(c) | Any funds or obligations deposited with the Debenture Trustee pursuant to this Section 9.5 shall be denominated in the currency or denomination of the Debentures in respect of which such deposit is made. | ||
(d) | If the Debenture Trustee is unable to apply any money in accordance with this Section 9.5 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the affected Debentures shall be revived and reinstated as though no money had been deposited pursuant to this Section 9.5 until such time as the Debenture Trustee is permitted to apply all such |
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money in accordance with this Section 9.5, provided that if the Company has made any payment in respect of principal, premium or interest on Debentures or, as applicable, other amounts because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the holders of such Debentures to receive such payment from the money held by the Debenture Trustee. |
(a) | prior to or contemporaneously with the consummation of such transaction the Company 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: |
(i) | the Successor will have assumed all the covenants and obligations of the Company under this Indenture in respect of the Debentures; | ||
(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 | ||
(iii) | in the case of an entity organized otherwise than under the laws of the Province of British Columbia, shall attorn to the jurisdiction of the courts of the Province of British Columbia; |
(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; and | ||
(c) | no condition or event shall exist as to the Company (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, premium, if any, interest and other monies due or which may become due hereunder, which constitutes or would constitute an Event of Default hereunder. |
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(a) | “Affiliate”, when used to indicate a relationship with a Person, has the meaning ascribed thereto in National Instrument 45-106 of the Canadian Securities Administrators; | ||
(b) | “Associate”, when used to indicate a relationship with a Person, has the meaning ascribed thereto in the Securities Act (British Columbia); | ||
(c) | “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; | ||
(d) | “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; | ||
(e) | “offer to acquire” includes an acceptance of an offer to sell; | ||
(f) | “Offeror” means a Person, or two or more Persons acting jointly or in concert, who make an Offer to acquire Debentures; | ||
(g) | “Offeror’s Notice” means the notice described in Section 11.3; and | ||
(h) | “Offeror’s Debentures” means Debentures beneficially owned, or over which control or direction is exercised, on the date of an Offer by the Offeror, any Affiliate or Associate of the Offeror or any Person acting jointly or in concert with the Offeror. |
(a) | within the time provided in the Offer for its acceptance or within 45 days after the date the Offer is made, whichever period is the shorter, the Offer is accepted by Debentureholders representing at least 90% of the outstanding principal amount of the Debentures, other than the Offeror’s Debentures; | ||
(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 | ||
(c) | the Offeror complies with Sections 11.3 and 11.5; |
(a) | Debentureholders holding at least 90% of the principal amount of all outstanding Debentures, other than Offeror’s Debentures, have accepted the Offer; | ||
(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; | ||
(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; and | ||
(d) | Dissenting Debentureholders must send their respective Debenture certificate(s) to the Debenture Trustee within 21 days after the date of the sending of the Offeror’s Notice. |
(a) | do all acts and things and execute and cause to be executed all instruments as in the Debenture Trustee’s opinion may be necessary or desirable to cause the transfer of the Debentures of the Dissenting Debentureholders to the Offeror; | ||
(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 11 net of applicable withholding taxes, if any; and |
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(c) | send to each Dissenting Debentureholder who has not complied with Section 11.4 a notice stating that: |
(i) | his, her or its Debentures have been transferred to the Offeror; | ||
(ii) | the Debenture Trustee or some other person designated in such notice are holding in trust the consideration for such Debentures; and | ||
(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; |
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(a) | the form of the instrument appointing a proxy, which shall be in writing, and the manner in which the same shall be executed and the production of the authority of any person signing on behalf of a Debentureholder; | ||
(b) | the deposit of instruments appointing proxies at such place as the Debenture Trustee, the Company or the Debentureholder convening the meeting, as the case may be, may, in the notice convening the meeting, direct and the time, if any, before the holding of the meeting or any adjournment thereof by which the same must be deposited; and | ||
(c) | the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed, faxed or sent by other electronic means before the meeting to the Company 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. |
(a) | power to authorize the Debenture Trustee to grant extensions of time for payment of any principal, premium or interest on the Debentures, whether or not the principal, premium or interest, the payment of which is extended, is at the time due or overdue; | ||
(b) | power to sanction any modification, abrogation, alteration, compromise or arrangement of the rights of the Debentureholders or the Debenture Trustee against the Company, or against its property, whether such rights arise under this Indenture or the Debentures or otherwise; | ||
(c) | power to assent to any modification of or change in or addition to or omission from the provisions contained in this Indenture or any Debenture which shall be agreed to by the Company and to authorize the Debenture Trustee to concur in and execute any indenture supplemental hereto embodying any modification, change, addition or omission; | ||
(d) | power to sanction any scheme for the reconstruction, reorganization or recapitalization of the Company or for the consolidation, amalgamation or merger of the Company 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 Company 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; |
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(e) | power to direct or authorize the Debenture Trustee to exercise any power, right, remedy or authority given to it by this Indenture in any manner specified in any such Extraordinary Resolution or to refrain from exercising any such power, right, remedy or authority; | ||
(f) | power to waive, and direct the Debenture Trustee to waive, any default hereunder or to cancel any declaration made by the Debenture Trustee pursuant to Section 8.1 either unconditionally or upon any condition specified in such Extraordinary Resolution; | ||
(g) | power to restrain any Debentureholder from taking or instituting any suit, action or proceeding for the purpose of enforcing payment of the principal, premium or interest on the Debentures, or for the execution of any trust or power hereunder; | ||
(h) | power to direct any Debentureholder who, as such, has brought any action, suit or proceeding to stay or discontinue or otherwise deal with the same upon payment, if the taking of such suit, action or proceeding shall have been permitted by Section 8.5, of the costs, charges and expenses reasonably and properly incurred by such Debentureholder in connection therewith; | ||
(i) | power to assent to any compromise or arrangement with any creditor or creditors or any class or classes of creditors, whether secured or otherwise, and with holders of any Stapled Units or other securities of the Company; | ||
(j) | power to appoint a committee with power and authority (subject to such limitations, if any, as may be prescribed in the resolution) to exercise, and to direct the Debenture Trustee to exercise, on behalf of the Debentureholders, such of the powers of the Debentureholders as are exercisable by Extraordinary Resolution or other resolution as shall be included in the resolution appointing the committee. The resolution making such appointment may provide for payment of the expenses and disbursements of and compensation to such committee. Such committee shall consist of such number of persons as shall be prescribed in the resolution appointing it and the members need not be themselves Debentureholders. Every such committee may elect its chairman and may make regulations respecting its quorum, the calling of its meetings, the filling of vacancies occurring in its number and its procedure generally. Such regulations may provide that the committee may act at a meeting at which a quorum is present or may act by minutes signed by the number of members thereof necessary to constitute a quorum. All acts of any such committee within the authority delegated to it shall be binding upon all Debentureholders. Neither the committee nor any member thereof shall be liable for any loss arising from or in connection with any action taken or omitted to be taken by them in good faith; | ||
(k) | power to remove the Debenture Trustee from office and to appoint a new Debenture Trustee or Debenture Trustees provided that no such removal shall be effective unless and until a new Debenture Trustee or Debenture Trustees shall have become bound by this Indenture; | ||
(l) | power to sanction the exchange of the Debentures for or the conversion thereof into Stapled Units, bonds, debentures or other securities or obligations of the Company or of any other Person formed or to be formed; | ||
(m) | power to authorize the distribution in specie of any shares or securities received pursuant to a transaction authorized under the provisions of Section 12.11(l); and | ||
(n) | power to amend, alter or repeal any Extraordinary Resolution previously passed or sanctioned by the Debentureholders or by any committee appointed pursuant to Section 12.11(j). |
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(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 are present in person or by proxy and passed by the favourable votes of the holders of not less than 66 2/3% of the principal amount of the Debentures present or represented by proxy at the meeting and voted upon on a poll on such resolution. | ||
(b) | If, at any such meeting, the holders of not less than 25% of the principal amount of the Debentures then outstanding 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 shall state that at the adjourned meeting the Debentureholders present in person or by proxy shall form a quorum. At the adjourned meeting the Debentureholders present in person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened and a resolution proposed at such adjourned meeting and passed thereat by the affirmative vote of holders of not less than 66 2/3% of the principal amount of the Debentures 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 are not present in person or by proxy at such adjourned meeting. | ||
(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. |
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(a) | Any request, direction, notice, consent or other instrument which this Indenture may require or permit to be signed or executed by the Debentureholders may be in any number of concurrent instruments of similar tenor signed or executed by such Debentureholders. | ||
(b) | The Debenture Trustee may, in its discretion, require proof of execution in cases where it deems proof desirable and may accept such proof as it shall consider proper. |
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(a) | a Certificate of the Company, stating that any such condition precedent has been complied with in accordance with the terms of this Indenture; | ||
(b) | in the case of a condition precedent compliance with which is, by the terms of this Indenture, made subject to review or examination by a solicitor, an opinion of Counsel that such condition precedent has been complied with in accordance with the terms of this Indenture; and | ||
(c) | in the case of any such condition precedent compliance with which is subject to review or examination by auditors or accountants, an opinion or report of the Auditors of the Company 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. |
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(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 Company, or otherwise, and shall not be liable for acting, or refusing to act, in good faith on any such opinion or advice and may pay proper and reasonable compensation for all such legal and other advice or assistance as aforesaid, payable by the Company in accordance with Section 14.19(a); and | ||
(b) | employ such agents and other assistants as it may reasonably require for the proper discharge of its duties hereunder, and may pay reasonable remuneration for all services performed for it (and shall be entitled to receive reasonable remuneration for all services performed by it) in the discharge of the trusts hereof and compensation for all disbursements, costs and expenses made or incurred by it in the 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 Company. |
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(a) | is not intended to be used by or on behalf of any third party; or | ||
(b) | is intended to be used by or on behalf of a third party, in which case such third party hereto agrees to complete and execute forthwith a declaration in the Debenture Trustee’s prescribed form as to the particulars of such third party. |
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(a) | the Debenture Trustee’s written notice shall describe the circumstances of such non-compliance; and | ||
(b) | if such circumstances are rectified to the Debenture Trustee’s satisfaction within such 10 day period, then such resignation shall not be effective. |
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(a) | The Company shall pay to the Debenture Trustee from time to time compensation for its services hereunder as agreed separately by the Company and the Debenture Trustee, and shall pay or reimburse the Debenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Debenture Trustee in the administration or execution of its duties under this Indenture (including the reasonable and documented compensation and disbursements of its Counsel and all other advisers and assistants not regularly in its employ), both before any default hereunder and thereafter until all duties of the Debenture Trustee under this Indenture shall be finally and fully performed. The Debenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. | ||
(b) | The Company hereby indemnifies and saves harmless the Debenture Trustee and its directors, officers, employees and agents (collectively, the “Indemnified Parties” and each an “Indemnified Party”) from and against any and all loss, damages, charges, expenses, claims, demands, actions or liability whatsoever which may be brought against an Indemnified Party 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 gross negligence, or the wilful misconduct or bad faith of an Indemnified Party. This indemnity will survive the termination or discharge of this Indenture and the resignation or removal of the Debenture Trustee. An Indemnified Party shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Indemnified Party shall co-operate in the defence. An Indemnified Party may have separate counsel and the Company shall pay the reasonable fees and expenses of such Counsel. The Company need not pay for any settlement made without its consent, which consent must not be unreasonably withheld. This indemnity shall survive the resignation or removal of the Debenture Trustee or the discharge of this Indenture. | ||
(c) | The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Debenture Trustee through gross negligence, wilful misconduct or bad faith. |
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(a) | adding to the covenants of the Company herein contained for the protection of the Debentureholders or providing for events of default, in addition to those herein specified; | ||
(b) | 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), the rights of the Debentureholders are in no way prejudiced thereby; | ||
(c) | evidencing the succession, or successive successions, of others to the Company and the covenants of and obligations assumed by any such successor in accordance with the provisions of this Indenture; | ||
(d) | giving effect to any Extraordinary Resolution passed as provided in Article 12; and | ||
(e) | for any other purpose not inconsistent with the terms of this Indenture, provided that, in the opinion of the Debenture Trustee (relying on an opinion of Counsel), the rights of the Debentureholders are in no way prejudiced thereby. |
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By: |
||||
Title: Executive Vice President and Chief Financial Officer |
||||
VALIANT TRUST COMPANY | ||||
By: |
||||
Title: Managing Director, Client Services |
||||
By: |
||||
Title: Manager, Client Services |
No. | CDN$ |
(A company governed by the laws of British Columbia)
A-2
A-3
A-4
TIMBERWEST FOREST CORP. | ||||
By: | ||||
Xxxxxxxx X. Park | ||||
Executive Vice President and Chief Financial Officer |
A-5
VALIANT TRUST COMPANY | ||||
By: | ||||
(Authorized Officer) |
Signature of Debenture Trustee or | ||||
Date of Registration | In Whose Name Registered | Registrar | ||
Signature of Debenture Trustee or Registrar | ||
8th Floor, Canaccord Tower
000 Xxxxxxxxx Xxxxxx
P.O. Box 10324
Vancouver, British Columbia V7Y 1J8
Date of Registration: |
||||
In Whose Name Registered:
|
CDS & Co.] |
A-6
Dated: |
||||
Address of Transferee: |
||||
(Street Address, City, Province and Postal Code): |
Social Insurance Number of Transferee, if applicable: |
||||
1. | The signature(s) to this assignment must correspond with the name(s) as written upon the face of this Debenture in every particular without alteration or any change whatsoever. The signature(s) must be guaranteed by a Canadian chartered bank or trust company or by a member of an acceptable Medallion Guarantee Program. Notarized or witnessed signatures are not acceptable as guaranteed signatures. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”. |
2. | The registered holder of this 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. |
Name of Institution
|
Signature of transferring registered holder |
A-7
TO CDS GLOBAL DEBENTURE
TIMBERWEST FOREST CORP.
Initial Principal Amount: CDN$• | CUSIP: 000000XX0 |
Amount of | New Principal | |||||||
Date | Amount of Increase | Decrease | Amount | Authorization | ||||
To: | Holders of 9.0% Convertible Debentures (the “Debentures”) of TimberWest Forest Corp. (the “Company”) |
Note: | All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated. |
Suite 600 — 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
Authorized Signatory
TO: | TIMBERWEST FOREST CORP. (the “Company”) |
Note: | All capitalized terms used herein have the meaning ascribed thereto in the Indenture mentioned below, unless otherwise indicated. |
Dated: |
||||||||
(Signature of Registered Holder) |
NOTE: | If Stapled Units are to be issued in the name of a person other than the holder, the signature must be guaranteed by a chartered bank, a trust company or by a member of an acceptable Medallion Guarantee Program. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”. | |
(Print name in which Stapled Units are to be issued, delivered and registered) |
Name:
|
||||||
(Address) |
||||||
(City, Province and Postal Code) | ||||||
Name of guarantor: | ||||||
Authorized signature: | ||||||
1. | Name of the Holder. The Holder is the beneficial owner of the Debentures being converted as opposed to an agent or broker holding the Debentures on behalf of the beneficial owner. | ||
2. | Social insurance number or business number. A Holder that is not resident in Canada should write “non-resident” in this space. | ||
3. | Address. | ||
4. | Holder type. |
5. | Taxation year of taxpayer. The “taxation year of taxpayer” that the Holder must provide is the taxation year that includes the date on which the Debentures are converted (the “Effective Date”). |
a. | Individuals are taxed on a calendar year basis and have a December 31 taxation year. | ||
b. | Inter vivos trusts are taxed on a calendar year basis and have a December 31 taxation year. | ||
c. | Testamentary trusts may have a taxation year that ends at any time of the year. For testamentary trusts, the taxation year that the Holder must provide is the one containing the Effective Date. | ||
d. | Corporations may have a taxation year that ends at any time of the year. For corporations, the taxation year of the Holder must provide is one containing the Effective Date. |
6. | The Tax Services Office where the Holder files its tax returns. |
7. | Name of Co-Owner(s). | ||
8. | Social insurance number or business number of Co-Owner(s). | ||
9. | Address of Co-Owner(s). | ||
10. | Co-Owner(s) type. | ||
11. | Taxation year of Co-Owner(s). | ||
12. | Tax Services Office of Co-Owner(s). | ||
13. | Contact Information. | ||
The Company may need to contact a Holder to clarify the information received. In this regard, the Company requests that the Holder provide one or more of the following: a telephone number, facsimile number and e-mail address. | |||
14. | The Holder should indicate whether the Debentures are capital property of the Holder for purposes of the Tax Act. Unless Debentures have been acquired by a trader or dealer in securities or as an adventure in the nature of trade, the Debentures should be capital property of a Holder. Any Debentures that are indicated as not being capital property will be assumed to be inventory for purposes of the Tax Act. | ||
15. | The Holder’s adjusted cost base, in the case of Debentures that are capital property of the Holder, or cost, in the case of Debentures that are inventory, as determined under the Tax Act. A Holder should consult its tax advisors to determine the adjusted cost base of the Debentures being converted. |
Election Form Information
1. Name of Holder |
||
2. Social insurance number(SIN) /business number (BN) |
||
3. Address Street |
||
City, Province |
||
Postal Code |
||
4. Holder
|
Corporation | |
Individual | ||
Trust | ||
5. Taxation year of Holder
|
YYYY/MM/DD to YYYY/MM/DD | |
6. Tax Services Office |
||
7. Name of co-owner(s), if any1 |
||
8. SIN/BN of co-owner(s), if any |
||
9. Address of co-owner(s) |
||
same as above?
|
Yes | |
or |
||
Address Street |
||
City, Province |
||
Postal Code
|
||
10. Co-owner(s) type
|
Corporation | |
Individual | ||
Trust | ||
11. Taxation year of co-owner(s)
|
YYYY/MM/DD to YYYY/MM/DD | |
12. Tax Services Office of co-owner(s) |
||
13. Contact Information: |
||
Telephone number |
||
Facsimile number |
||
E-mail address |
||
1 | If there are two or more co-owners of the Debentures, ensure that all of the co-owners are identified on a separate sheet of paper containing similar information as requested in items 7, 8, 9, 10, 11 and 12. |
14. Are the Debentures being converted capital
properties?
|
Yes No | |||
15. The adjusted cost base or cost of the
Debentures being converted
|
$ | |||
Dated: |
||||||||
(Signature of Registered Holder) |
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EXHIBIT “B” |
Canada Revenue Agency Agence du revenu du Canada ELECTION ON DISPOSITION OF PROPERTY BY A TAXPAYER TO A TAXABLE CANADIAN CORPORATION |
· For use by a taxpayer and a taxable Canadian corporation to jointly elect under subsection 85(1) where the taxpayer has disposed of eligible property within the meaning of subsection 85(1.1) to the corporation and has received as consideration shares of any class in that corporation. |
· File one completed copy of the election and related schedules (if any) as follows: |
1- a) one copy by the transferor. |
b) two or more copies as follows; Where two or more transferors elect regarding the transfer of the same property (co-ownership) or two or more members of the same partnership elect for the transfer of their partnership interests, one transferor designated for the purpose should file simultaneously one copy for each transferor, together with a list of all transferors electing. This list should contain the address and Social insurance number or Business Number of each transferor; |
2- on or before the earlier date on which any one of the parties to the election is required to file an income tax return for the taxation year in which the transaction occurred, taking into consideration any election under subsection 99(2) (due date); |
3- at the tax centre where the transferor’s income tax return is normally filed. Where two or more |
4- co-owners or members of a partnership referred to above elect, the elections will be processed in bulk and should be filed at the tax centre of the transferee; and |
5- separate from any tax returns. You may put it in the same envelope with a return, but do not insert it in or attach it to the return. |
Sections and subsections referred to on this form are from the Income Tax Act. Do not use this area |
Name of taxpayer (transferor) (print) Social insurance number or Business Number |
Address Postal code |
Taxation year of taxpayer for the period from Year Month Day to Year Month Day Tax services office |
Name of co-owner(s), if any (if more than one, attach schedule giving similar details) (print) Social insurance number |
Address Postal code Tax services office |
Name of corporation (transferee) (print) Business Number Address Postal code |
Taxation year of corporation for the period from Year Month Day to Year Month Day Tax services office |
Name of person to contact for additional information Area code Telephone number |
Penalty for late-filed and amended elections An election that is filed after its due date is subject to a late-filing penalty. Form T2057 can be filed within 3 years after its due date if an estimate of the penalty is paid at the time of filing. Form T2057 can be amended or filed after the 3-year period, but in these situations, attach both an estimate of the penalty and a written submission for consideration, explaining the reason why the election is amended or late. Calculation of late-filing penalty: Do not use this area Fair market value of property transferred . . . . . . . . . . . . Less: agreed amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Difference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.00 A Amount A x 1/4 x 1% x N* (N* ) . . = 0.00 B $100 x N* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . = 0.00 C *N represents the sum of each month or each part of a month in the period from the due date to the actual filing date. Amount C cannot exceed $8,000. Late-filing penalty is the lesser of B and C above . . . . . . . . . . . 0.00 Make cheque or money order payable to the Receiver General. Specify “T2057” on the remittance and, to ensure proper credit , please indicate the name and social insurance number of the taxpayer, or Business Number if a corporation. Amount enclosed Unpaid amounts including late-filing penalties are subject to daily compound interest, at a prescribed rate. T2057 (05) Page 1 of 3 |
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Information required On the following page, list, describe, and state the fair market value of transferred properties. The description and fair market value of the consideration received has to be shown opposite the related property transferred. Where the transferred property is a partnership interest, attach a schedule of the calculation of the adjusted cost base. If space on the form is insufficient, attach schedules giving similar details. You have to designate the order of disposition of each depreciable property. With this election you do not have to file the following materials: schedules supporting this designation, documentation relating to the responses to the questions below, and a brief summary of the method of evaluating the fair market value of each property transferred. However you have to keep them as the Canada Revenue Agency may ask to see them at a later date. Is there a written agreement relating to this transfer? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Does a price adjustment clause apply to any of the properties? (See the Interpretation Bulletin IT-169 for details.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Do any persons other than the taxpayer own or control directly or indirectly any shares of any class of the transferee? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Where a non-arm’s length rollover exists between 2 or more corporations, have all or substantially all (90% or more) of all the properties of the corporation(s) been transferred to the recipient corporation? . yes no Is the taxpayer a non-resident of Canada? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Are any of the properties transferred capital properties? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no If yes a) have they been owned continuously since Valuation Day (V-Day)? . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no b) have they been acquired after V-Day in a transaction considered not to be at arm’s length? . . . . . . . . . yes no c) since V-Day, has the taxpayer or any person from whom shares were acquired in a non-arm’s length transaction received any subsection 83(1) dividends for transferred shares? (If yes, provide details of amounts and dates received and attach a schedule.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Is the agreed amount of any of the transferred properties based on an estimate of fair market value on V-Day?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no a) If yes, does a formal documented V-Day value report exist? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Has an election under subsection 26(7) of the Income Tax Application Rules (Form T2076) been filed by or on behalf of the taxpayer? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yes no Where shares of the capital stock of a private corpor ation are included in the property disposed of, provide the following: Name of corporation (print) Business Number Paid-up capital of shares transferred |
Description of shares received Number of shares transferor received Class of shares Redemption value per share Paid-up capital Voting or non-voting Are shares Retractable ? * |
yes no yes no yes no yes no yes no |
*Retractable means redeemable at the option of the holder. |
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Informative notes |
· The rules for section 85 elections are complex. Essential information is contained in Information Circular, IC76-19 |
and Interpretation Bulletins, IT-169, IT-291, and IT-378. |
· Complete all the information areas and answer all questions. If this form is incomplete, the Canada Revenue Agency may consider the election invalid, and subsequent submissions may be subject to a late-filing penalty. |
· If the agreed amount exceeds the adjusted cost base of the property in the election, you must report the difference as a capital gain, as income or a combination of both, whichever applies. |
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Particulars of Eligible Property Disposed of and Consideration Received |
Date of sale or transfer of all properties listed below: Year Month Day Note: For properties sold or transferred on different dates, use separate T2057s. |
Property Disposed of Agreed Amount B $ Amount to be reported B-A If > 0 see Note 4 $ Consideration Received Description Elected Amount Limits Non-share Share Fair Market Value of Total consideration $ Fair Market Value $ A $ Description Number and Class |
Capital Property Excluding Depreciable |
Property (Brief legal) (See Note 1) 0 0 0 |
Depreciable |
Property (Description and prescribed Class) (See Note 2) 0 0 |
Eligible |
Capital Property (Kind) (See Note 3) 0 0 |
Inventory Excluding |
Real Property (Kind) (Cost Amount) 0 0 |
Resource |
Property (Brief legal) NIL 0 NIL 0 |
Security or Debt Obligation |
Property (Description) (Cost Amount) 0 0 Specified Debt Obligation (For financial institutions only) 0 0 Capital Property That is Real Property Owned by a Non-Resident Person 0 0 Nisa FundNo. 2 0 Note 1: Adjusted cost base (which is subject to adjustment per section 53). Note 2: The lesser of undepreciated capital cost of all property of the class and the cost of the property. Note 3: The lesser of 4/3 x cumulative eligible capital and the cost of the property. (New rules will apply on subsequent dispositions of eligible capital property occurring after December 20, 2002). Note 4: This amount is to be reported either as a capital gain or as income, whichever applies. Also, in the case of depreciable property or eligible capital property, a portion of the amount may have to be reported as a capital gain while another portion may have to be reported as income. *Refer to current Interpretation Bulletin IT-291 for more information on eligible property and an explanation of the limits. Election and Certification |
The taxpayer and corporation hereby jointly elect under subsection 85(1) in respect of the property specified, and certify that the information given in this election, and in any documents attached, is to the best of their knowledge, correct and complete. and Signature of Transferor of Authorized Officer or Authorized Person* Signature of Authorized Officer of Transferee Date * Attach a copy of authorizing agreement |