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SUPPLEMENTAL TRUST INDENTURE
DATED AS OF THE 10TH DAY OF NOVEMBER, 2006
BETWEEN
ALGONQUIN POWER INCOME FUND
and
CIBC MELLON TRUST COMPANY
PROVIDING FOR THE ISSUE OF SERIES 2 DEBENTURES
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THIS SUPPLEMENTAL TRUST INDENTURE made as of the 10th day of November,
2006.
BETWEEN:
ALGONQUIN POWER INCOME FUND, a trust established under the laws of the
Province of Ontario
(hereinafter called the "TRUST")
AND
CIBC MELLON TRUST COMPANY, a trust company authorized to carry on
business in all Provinces of Canada
(hereinafter called the "TRUSTEE")
WITNESSETH THAT:
WHEREAS the parties entered into an indenture (the "Indenture") dated
as of July 20, 2004;
AND WHEREAS the Trust proposes to issue Additional Debentures pursuant
to the Indenture as herein provided;
AND WHEREAS the Trust, under the laws relating thereto, is duly
authorized to create and issue the Additional Debentures to be issued as herein
provided;
AND WHEREAS, when certified by the Trustee and issued as provided in
this Supplemental Indenture, all necessary steps in relation to the Trust have
been duly enacted, passed and/or confirmed and other proceedings taken and
conditions complied with to make the creation and issue of the Additional
Debentures proposed to be issued hereunder legal, valid and binding on the Trust
in accordance with the laws relating to the Trust;
AND WHEREAS the foregoing recitals are made as representations and
statements of fact by the Trust and not by the Trustee:
NOW THEREFORE it is hereby covenanted, agreed and declared as follows:
1. Terms not otherwise defined herein shall have the meanings ascribed thereto
in the Indenture.
2. The Indenture shall be amended as follows:
(a) The definition of "90% Redemption Right" shall be amended by adding
the following phrase to the end of such definition:
"and Section 2.16(i)(iv)".
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(b) The definition of "Conversion Price" shall be amended by adding the
following phrase to the end of such definition:
"and in the case of the Series 2 Debentures as defined in Section
2.16(e)".
(c) the definition of "Initial Debentures" shall be amended by adding the
following phrase after the words "Initial Debentures":
"or "SERIES 1 DEBENTURES""
(d) The following definition shall be added after the definition of
"Serial Meeting":
""SERIES 2 DEBENTURES" means the Debentures designated as "6.20%
Convertible Unsecured Subordinated Debentures" and defined in Section
2.16;".
(e) The definition of "Maturity Notice" shall be amended by adding the
following phrase to the end of such definition:
"or Section 2.16(f), as applicable".
(f) The definitions of "Put Date", "Put Price" and "Put Right" shall be
amended by adding the following phrase to the end of each of such
definitions:
"and Section 2.16(i)(i)".
(g) The definition of "Redemption Price" shall be amended to delete the
phrase, "excluding interest," from the first line thereof and by
adding the following phrase to the end of such definition:
"and, in the case of the Series 2 Debentures, as provided for in
Section 2.16(c)".
(h) In Section 1.14, the following schedules shall be added to the end of
such section:
"Schedule "G" - Form of Series 2 Debenture
Schedule "H" - Form of Redemption Notice for Series 2 Debentures
Schedule "I" - Form of Maturity Notice for Series 2 Debentures
Schedule "J" - Form of Notice of Conversion for Series 2 Debentures
Schedule "K" - Form of Put Exercise Notice for SERIES 2 DEBENTURES".
(i) The following shall be added as new Section 2.16:
"2.16 FORM AND TERMS OF SERIES 2 DEBENTURES
(a) The second series of Debentures (the "SERIES 2 DEBENTURES")
authorized for issue is limited to an aggregate principal
amount of
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$60,000,000 and shall be designated as "6.20% Convertible
Unsecured Subordinated Debentures". However, subject to the
provisions set out herein, additional Debentures may be
issued pursuant to the Indenture after the date hereof.
(b) The Series 2 Debentures shall be dated as of November 22,
2006, shall mature on November 30, 2016 and shall bear
interest from the date of issue at the rate of 6.20% per
annum, payable in equal semi-annual payments in arrears on
May 31 and November 30 in each year with respect to the six
month period from and including November 30 to but excluding
May 31 and the six month period from and including May 31 to
but excluding November 30, respectively, except the first
such payment to fall due on May 31, 2007 in the amount of
$32.2740 per $1,000 principal amount of Series 2 Debentures
with respect to the period from and including November 22,
2006 to but excluding May 31, 2007, payable after as well as
before maturity and after as well as before default, with
interest on amounts in default at the same rate, compounded
semi-annually.
(c) The Series 2 Debentures will be redeemable in accordance
with the terms of Article 4, provided that the Series 2
Debentures will not be redeemable before November 30, 2010,
except in the event of the satisfaction of certain
conditions after a Change of Control has occurred as
outlined herein. On or after November 30, 2010, and prior to
November 30, 2012, the Series 2 Debentures may be redeemed
in whole at any time or in part from time to time at the
option of the Trust on notice as provided for in Section 4.3
provided that the Current Market Price immediately preceding
the date on which such notice of redemption is given is at
least 125% of the Conversion Price and the Trust shall have
provided to the Trustee an Officer's Certificate confirming
such Current Market Price. The Redemption Price for the
Series 2 Debentures will be a price equal to their principal
amount plus accrued and unpaid interest. On or after
November 30, 2012 and prior to the Maturity Date, the Series
2 Debentures may be redeemed at the option of the Trust in
whole or in part from time to time on notice as provided for
in Section 4.3 hereof at the Redemption Price, irrespective
of the Current Market Price. The Redemption Notice for the
Series 2 Debentures shall be in the form of Schedule H.
(d) The Series 2 Debentures will be subordinated to the Senior
Indebtedness of the Trust in accordance with the provisions
of Article 5; provided however, that nothing contained in
this Indenture shall in any way or manner restrict the Trust
from incurring, directly or indirectly, any additional
indebtedness.
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(e) Upon and subject to the provisions and conditions of Article
6, the Debentureholder of each Series 2 Debenture shall have
the right at such Debentureholder's option, at any time
prior to 5 p.m. Toronto Time on the earlier of the Business
Day immediately preceding the Maturity Date and the last
Business Day immediately preceding the date specified by the
Trust for redemption of the Series 2 Debentures by notice to
the Debentureholders of Series 2 Debentures in accordance
with Sections 2.16(c) and 4.3 (the earlier of which will be
the "Time of Expiry" for the purposes of Article 6 in
respect of the Series 2 Debentures), to convert the whole
or, in the case of a Debenture of a denomination in excess
of $1,000, any part which is $1,000 or an integral multiple
thereof, of the principal amount of such Debenture into
Trust Units at the Conversion Price in effect on the Date of
Conversion (as defined in Section 6.4(b)).
The Conversion Price in effect on the date hereof for each
Trust Unit to be issued upon the conversion of Series 2
Debentures shall be equal to $11.00 such that approximately
90.9091 Trust Units shall be issued for each $1,000
principal amount of Series 2 Debentures so converted. No
adjustment will be made for distributions on Trust Units
issuable upon conversion. Debentureholders converting their
Series 2 Debentures following a Redemption Notice shall be
entitled to receive, in addition to the applicable number of
Trust Units, accrued and unpaid interest (net of withholding
tax) in respect thereof for the period up to but excluding
the Date of Conversion from the latest Interest Payment
Date. The Conversion Price applicable to and the Trust
Units, securities or other property receivable on the
conversion of the Series 2 Debentures is subject to
adjustment pursuant to the provisions of Section 6.5.
(f) On redemption or on maturity of the Series 2 Debentures, the
Trust may, at its option and subject to the provisions of
Section 4.6 and Section 4.10 as applicable, and subject to
regulatory approval, elect to satisfy its obligation to pay
all or a portion of the aggregate the principal amount of
the Series 2 Debentures by issuing and delivering to the
Debentureholders of Series 2 Debentures Freely Tradeable
Trust Units, If the Trust elects to exercise such option, it
shall deliver a Redemption Notice (as defined in Section
4.3) or a maturity notice (the "MATURITY NOTICE") to the
Debentureholders of the Series 2 Debentures in the form of
Schedule H or Schedule I, as applicable.
(g) The Series 2 Debentures shall be issued as Fully Registered
Debentures in denominations of $1,000 and integral multiples
of
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$1,000 and the Trustee is hereby appointed as registrar and
transfer agent for the Series 2 Debentures. Each Series 2
Debenture and the certificate of the Trustee endorsed
thereon shall be issued in substantially the form set out in
Schedule G, 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 Board of Directors on behalf of
the Trust executing such Series 2 Debenture in accordance
with Section 2.7 hereof, as conclusively evidenced by their
execution of a Series 2 Debenture. Each Series 2 Debenture
shall additionally bear such distinguishing letters and
numbers as the Trustee shall approve. Notwithstanding the
foregoing, a Series 2 Debenture may be in such other form or
forms as may, from time to time, be approved by a resolution
of the Board of Directors on behalf of the Trust or as
specified in an Officer's Certificate. The Series 2
Debentures may be engraved, lithographed, printed,
mimeographed or typewritten or partly in one form and partly
in another.
The Series 2 Debentures shall be issued as Global Debentures
and the Depository for the Series 2 Debentures shall be The
Canadian Depository for Securities Limited. The Global
Debentures shall be registered in the name of The Canadian
Depository for Securities Limited (or any nominee of the
Depository). No Beneficial Holder will receive definitive
certificates representing their interest in Debentures
except as provided in Section 3.2. A Global Debenture may be
exchanged for Debentures in registered form that are not
Global Debentures, or transferred to and registered in the
name of a Person other than the Depository for such Global
Debentures or a nominee thereof as provided in Section 3.2.
(h) Upon and subject to the provisions and conditions of Article
11, the Trust may elect, from time to time, to satisfy its
Interest Obligation on the Series 2 Debentures on any
Interest Payment Date by delivering Trust Units to the agent
appointed for such purpose on behalf of the Trust.
(i) Within 30 days following the occurrence of a Change of
Control, and subject to the provisions and conditions of
this Section 2.16(i), the Trust shall be obligated to offer
Debentureholders the right to require the Trust to purchase
their Series 2 Debentures, in
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accordance with the terms and conditions of such right set
forth below:
(i) Within 30 days following the occurrence of a Change
of Control, each Debentureholder of Series 2
Debentures shall have the right (the "PUT RIGHT") to
require the Trust to purchase, on the date which is
30 days following the date upon which the Trustee
delivers a Change of Control Notice (as defined
below) to the Debentureholders of Series 2 Debentures
(the "PUT DATE"), all or any part of such
Debentureholder's Series 2 Debentures in accordance
with the requirements of Applicable Securities
Legislation at a price equal to 101% of the principal
amount thereof (the "PUT PRICE") plus accrued and
unpaid interest on such Series 2 Debentures up to,
but excluding, the Put Date (collectively, the "TOTAL
PUT PRICE").
(ii) The Trust will, as soon as practicable, and in any
event no later than 2 days after the occurrence of a
Change of Control, give written notice to the Trustee
of the Change of Control. Such written notice of the
Trust shall state whether the Put Price will be
payable in cash or satisfied, in whole or in part, by
the issuance of Trust Units, as contemplated in
Subsection 2.16(i)(xiii). The Trustee will, as soon
as practicable thereafter, and in any event no later
than 2 days after receiving notice from the Trust of
the Change of Control, provide written notice to the
Debentureholders of Series 2 Debentures of the Change
of Control (the "CHANGE OF CONTROL NOTICE"). The
Change of Control Notice shall include a description
of the Change of Control, details of the
Debentureholders' Put Right under the terms of the
Indenture, details regarding whether the Put Price is
to be paid in cash or, in whole or in part, in Trust
Units, a statement that each Debentureholder will be
entitled to withdraw his election to require the
Trust to purchase if the Trustee receives, no later
than the close of business on the third Business Day
immediately preceding the Put Date, a facsimile
transmission or letter setting forth the name of such
Debentureholder, the principal amount of the Series 2
Debentures delivered for purchase and a statement
that such Debentureholder is withdrawing his election
to have the Series 2 Debentures purchased and a
description of the rights of the Trust to redeem
untendered Series 2 Debentures in accordance with
Section 2.16(i)(iv) hereof.
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(iii) To exercise the Put Right, the Debentureholder must
deliver to the Trustee, not less than 5 Business Days
prior to the Put Date, written notice of the
Debentureholder's exercise of such right in the form
attached as Schedule K together with (a) the Series 2
Debentures with respect to which the right is being
exercised, duly endorsed for transfer, or (b) if the
Series 2 Debentures have been issued as Global
Debentures, a duly endorsed form of transfer.
(iv) If 90% or more in aggregate principal amount of
Series 2 Debentures outstanding on the date the Trust
provides notice of a Change of Control to the Trustee
have been tendered for purchase pursuant to the Put
Right on the Put Date, the Trust has the right upon
written notice provided to the Trustee prior to the
Put Date, to redeem all the remaining outstanding
Series 2 Debentures on the Put Date at the Total Put
Price (the "90% REDEMPTION RIGHT").
(v) Upon receipt of notice that the Trust shall exercise
the 90% Redemption Right and acquire the remaining
Series 2 Debentures, the Trustee shall promptly
provide written notice to all Debentureholders that
did not previously exercise the Put Right that:
(A) The Trust has exercised the 90% Redemption Right
and will purchase all outstanding Series 2
Debentures on the Put Date at the Total Put
Price, including a calculation of such
Debentureholder's Total Put Price;
(B) They must transfer their Series 2 Debentures to
the Trustee on the same terms as those
Debentureholders that exercised the Put Right
and must send their respective Series 2
Debentures, duly endorsed for transfer, or their
duly endorsed form of transfer, as applicable,
to the Trustee within 10 days after sending of
such notice; and
(C) The rights of such Debentureholder under the
terms of the Series 2 Debentures cease as of the
Put Date provided the Trust has paid the Total
Put Price to, or to the order of, the Trustee
and thereafter the Series 2 Debentures shall not
be considered to be outstanding and the
Debentureholder shall not have any right except
to receive the Total Put Price upon surrender
and delivery of such Debentureholder's
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Series 2 Debentures in accordance with the
Indenture.
(vi) Subject to Section 2.16(i)(xiii), the Trust shall, on
or before 11:00 a.m., Toronto time on the Business
Day immediately prior to the Put Date, deposit with
the Trustee or any paying agent to the order of the
Trustee, such sums of money, as may be sufficient to
pay the Total Put Price of the Series 2 Debentures to
be purchased or redeemed by the Trust on the Put
Date, provided the Trust may elect to satisfy this
requirement by providing the Trustee with a certified
cheque for such amounts required under this Section
2.16(i)(vi) post-dated to the Put Date or the Trust
may satisfy this requirement by an electronic funds
transfer of such sums of money on the Put Date. To
the extent requested by the Trustee, the Trust shall
also deposit with the Trustee a sum of money
sufficient to pay any charges or expenses which may
be incurred by the 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 Trustee shall pay or cause to be paid
to the Debentureholders of such Series 2 Debentures,
the Total Put Price, and interest, if any, to which
they are entitled on the Trust's purchase or
redemption.
(vii) In the event that one or more of such Series 2
Debentures being purchased in accordance with this
Section 2.16(i) becomes subject to purchase in part
only, upon surrender of such Series 2 Debentures for
payment of the Total Put Price, the Trust shall
execute and the Trustee shall certify and deliver
without charge to the Debentureholder thereof or upon
the Debentureholder's order, one or more new Series 2
Debentures for the portion of the principal amount of
the Series 2 Debentures not purchased.
(viii) Series 2 Debentures for which Debentureholders have
exercised the Put Right and Series 2 Debentures which
the Trust has elected to redeem in accordance with
this Section 2.16(i) shall become due and payable at
the Total Put Price on the Put Date, in the same
manner and with the same effect as if it were the
date of maturity specified in such Series 2
Debentures, anything therein or herein to the
contrary notwithstanding, and from and after such Put
Date, if the money necessary to purchase or redeem
the Series 2 Debentures shall have been deposited as
provided in this Section 2.16(1) and affidavits or
other proofs satisfactory to
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the Trustee as to the publication and/or mailing of
such notices shall have been lodged with it, interest
on the Series 2 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 Trustee whose
decision shall be final and binding upon all parties
in interest.
(ix) In case the Debentureholder of any Series 2 Debenture
to be purchased or redeemed in accordance with this
Section 2.16(i) shall fall on or before the Put Date
so to surrender such Debentureholder's Series 2
Debenture or duly endorsed form of transfer or shall
not within such time accept payment of the moneys
payable, or give such receipt therefor, if any, as
the Trustee may require, such moneys may be set aside
in trust without interest, either in the deposit
department of the Trustee or in a chartered bank, and
such setting aside shall for all purposes be deemed a
payment to the Debentureholder of the sum so set
aside and, to that extent, the Series 2 Debenture
shall thereafter not be considered as outstanding
hereunder and the Debentureholder shall have no other
right except to receive payment of the moneys so paid
and deposited, upon surrender and delivery up of such
Debentureholder's Series 2 Debenture, of the Total
Put Price. In the event that any money required to be
deposited hereunder with the Trustee or any
depositary or paying agent on account of principal,
premium, if any, or interest, if any, on Series 2
Debentures issued hereunder shall remain so deposited
for a period of ten years from the Put Date, then
such moneys, together with any accumulated interest
thereon, shall at the end of such period be paid over
or delivered over by the Trustee or such depositary
or paying agent to the Trust and the Trustee shall
not be responsible to Debentureholders for any
amounts owing to them.
(x) Subject to the provisions above related to Series 2
Debentures purchased in part, all Series 2 Debentures
redeemed and paid under this Section 2.16(i) shall
forthwith be delivered to the Trustee and cancelled
and no Series 2 Debentures shall be issued in
substitution therefor.
(xi) The Trust will publicly announce the results of the
purchases made pursuant to this Section 2.16(i) as
soon as practicable after the Put Date.
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(xii) The Trust will comply with all Applicable Securities
Legislation in the event that the Trust is required
to repurchase Series 2 Debentures pursuant to this
Section 2.16(i).
(xiii) Notwithstanding any other provision of this
Indenture, the Trust shall be entitled at its option,
subject to regulatory approval, to deposit with the
Debenture Trustee or any paying agent to the order of
the Debenture Trustee, in lieu of all or any portion
of the cash which would otherwise be required to be
deposited with the Debenture Trustee hereunder in
payment of the Put Price, Freely Tradeable Trust
Units for purposes of making payment of all or any
portion of the Put Price. If the Trust elects to pay
the Put Price in Freely Tradeable Trust Units, the
number of such Freely Tradeable Trust Units will be
determined by dividing the Put Price by 95% of the
Current Market Price in effect on the Put Date, and
then multiplying the quotient by the fraction of the
Put Price to be satisfied by Freely Tradeable Trust
Units. No fractional Trust Units shall be issued as
payment of the Put Price but in lieu thereof the
Trust shall satisfy fractional interests by a cash
payment equal to the relevant fraction of the
fractional interest in a Trust Unit multiplied by the
Current Market Price of the Trust Units in effect on
the Put Date. In all other respects, in paying the
Put Price the Trust shall be subject to the
requirements of Section 2.16(i)(vi) and the Debenture
Trustee shall, in making payment to holders of such
Series 2 Debentures pursuant to Section 2.16(i)(vi)
of the Put Price, make payment using such Freely
Tradeable Trust Units. Solely for purposes of this
Section 2.16(i)(xiii), the term "Current Market
Price" as set forth in Section 1.1 shall be modified
to provide that in the event the Trust Units are not
at the relevant time listed on any stock exchange or
traded on the over-the-counter market, the Current
Market Price shall be the fair market value of the
Trust Units as determined by the Trust or the
Manager, on behalf of the Trust, acting reasonably.
In the event the Trust exercises its right pursuant
to this Section 2.16(i)(xiii) to deliver Freely
Tradeable Trust Units, the provisions of paragraphs
(c) to (l) inclusive of Section 4.10 shall apply,
mutatis mutandis.
(j) The Trustee shall be provided with the documents and
instruments referred to in Sections 2.5(b), (c) and (d) with
respect to the Series 2 Debentures prior to the issuance of
the Series 2 Debentures."
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(i) the schedules attached hereto shall be added as additional
schedules to the Indenture.
3. Except as expressly amended hereby, the Indenture shall remain in full force
and effect, unamended.
IN WITNESS whereof the parties hereto have executed these presents
under their respective corporate seals and the hands of their proper officers in
that behalf.
ALGONQUIN POWER INCOME FUND,
BY ITS MANAGER, ALGONQUIN
POWER MANAGEMENT INC.
By: (signed) "Xxxxx Xxxx"
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Name: Xxxxx Xxxx
Title: Authorized Signing Authority
CIBC MELLON TRUST COMPANY
By: (signed) "Lennox August"
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Name: Lennox August
Title: Associate Manager
By: (signed) "Xxxxxxx Petryla"
------------------------------------
Name: Xxxxxxx Petryla
Title: Account Manager
SCHEDULE "G"
TO THE TRUST INDENTURE BETWEEN
ALGONQUIN POWER INCOME FUND
AND
CIBC MELLON TRUST COMPANY
FORM OF DEBENTURE
SCHEDULE "G"
FORM OF SERIES 2 DEBENTURE
ALGONQUIN POWER INCOME FUND
(A TRUST GOVERNED BY THE LAWS OF ONTARIO)
6.20% CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
DUE NOVEMBER 30, 2016
No._______________ CUSIP 015910 AB 8
ALGONQUIN POWER INCOME FUND (the "Trust") for value received hereby
acknowledges itself indebted and, subject to the provisions of the Trust
Indenture dated July 20, 2004 as amended pursuant to a supplemental trust
indenture dated as of November 10, 2006 (collectively, the "Indenture") between
the Trust and CIBC Mellon Trust Company (the "Trustee"), promises to pay to the
registered Debentureholder hereof on November 30, 2016 (the "Maturity Date") or
on such earlier date as the principal amount hereof may become due in accordance
with the provisions of the Indenture the principal sum of ______________________
___________________________________________________DOLLARS in lawful money of
Canada on presentation and surrender of this Series 2 Debenture at the main
branch of the Trustee in Xxxxxxx, Xxxxxxx, in accordance with the terms of the
Indenture and, subject as hereinafter provided, to pay interest on the principal
amount hereof from the date hereof, or from the last Interest Payment Date to
which interest shall have been paid or made available for payment hereon,
whichever is later, at the rate of 6.20% per annum, in like money in arrears in
equal semi-annual instalments (less any tax required by law to be deducted) on
May 31 and November 30 in each year, except for the first such payment to fall
due on May 31, 2007, which shall be in the amount of $32.2740 per $1,000
principal amount of Debentures and, should the Trust at any time make default in
the payment of any principal or Interest, to pay interest on the amount in
default at the same rate, in like money and on the same dates.
Interest hereon shall be payable by cheque or by electronic transfer of
funds transferred to the registered Debentureholder hereof and, subject to the
provisions of the Indenture, the mailing of such cheque or electronic transfer
of funds, as the case may be, shall, to the extent of the sum represented
thereby (plus the amount of any tax withheld), satisfy and discharge all
liability for interest on this Debenture.
This Debenture is one of the Debentures of the Trust issued or issuable in
one or more series under the provisions of the Indenture (individually a "Series
2 Debenture" and collectively the "Series 2 Debentures"). However, subject to
the terms of the Indenture, additional debentures may be issued pursuant to the
Indenture after the date hereof. The Series 2 Debentures are limited to an
aggregate principal amount of $60,000,000 in lawful money of Canada. Reference
is hereby expressly made to the Indenture for a description of the terms and
conditions upon which the Series 2 Debentures are or are to be issued and held
and the rights and remedies of the Debentureholders of the Series 2 Debentures
and of the Trust and of the Trustee, all to the same
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effect as if the provisions of the Indenture were herein set forth to all of
which provisions the Debentureholder of this Series 2 Debenture by acceptance
hereof assents.
The Series 2 Debentures are issuable only in denominations of $1,000 and
integral multiples thereof. Upon compliance with the provisions of the
Indenture, Series 2 Debentures of any denomination may be exchanged for an equal
aggregate principal amount of Series 2 Debentures in any other authorized
denomination or denominations.
The whole, or if this Series 2 Debenture is in a denomination in excess of
$1,000 any part of which is $1,000 or an integral multiple thereof, of the
principal of this Series 2 Debenture is convertible, at the option of the
Debentureholder hereof, upon surrender of this Series 2 Debenture at the
principal office of the Trustee in the Cities of Calgary, Alberta, Montreal,
Quebec and Toronto, Ontario, at any time prior to the close of business on the
last Business Day immediately preceding the Maturity Date or, if this Series 2
Debenture is called for redemption on or prior to such date, then at any time,
but not after the close of business on the last Business Day immediately
preceding the date specified for redemption of this Series 2 Debenture, into
Trust Units of the Trust (without adjustment for dividends or distributions on
Trust Units issuable upon conversion) at a conversion price of $11.00 (the
"Conversion Price") per Trust Unit, being a rate of 90.9091 Trust Units for each
$1,000 principal amount of Series 2 Debentures, all subject to the terms and
conditions and in the manner set forth in the Indenture. The Indenture makes
provision for the adjustment of the Conversion Price in the events therein
specified. No fractional Trust Units will be issued on any conversion but in
lieu thereof, the Trust will satisfy such fractional interest by a cash payment
equal to the market price of such fractional interest as determined in
accordance with the Indenture.
The Series 2 Debenture may be redeemed at the option of the Trust on the
terms and conditions set out in the Indenture at the redemption price therein
set out. This Series 2 Debenture is not redeemable before November 30, 2010,
except in the event of the satisfaction of certain conditions after a Change of
Control has occurred. On or after November 30, 2010, and prior to November 30,
2012, this Series 2 Debenture is redeemable at the option of the Trust in whole
or in part at a price equal to the principal amount of the Series 2 Debentures
plus accrued and unpaid interest (the "Redemption Price") provided that the
Trust files with the Trustee on the date that notice of redemption of this
Series 2 Debenture is first provided, an Officer's Certificate of the Trust
certifying that the weighted average trading price of the Trust Units on the TSX
(or elsewhere in accordance with the Indenture) for 20 consecutive trading days,
ending on the fifth trading day preceding the date notice is given (the "Current
Market Price"), is at least 125% of the Conversion Price then in effect and
otherwise on the terms and conditions described in the Indenture. In addition
thereto, at the time of redemption, the Trust shall pay to the holder any
accrued and unpaid interest. On or after November 30, 2012 and prior to the
Maturity Date, this Series 2 Debenture may be redeemed at the option of the
Trust in whole or in part from time to time on notice, at the Redemption Price
irrespective of the Current Market Price and otherwise on the terms and
conditions described in the Indenture.
Upon the occurrence of a Change of Control of the Trust involving the
acquisition of voting control or direction over 66 2/3% or more of the Trust
Units of the Trust, each Debentureholder of Series 2 Debentures may require the
Trust to purchase on the date that is 30 days following the giving of notice of
the Change of Control (the "Put Date") the whole or any
-3-
part of such Debentureholder's Series 2 Debentures at a price equal to 101% of
the principal amount of such Series 2 Debentures plus accrued and unpaid
interest, if any, up to, but excluding, the date the Series 2 Debentures are so
repurchased. The Trust, at its option, may elect to satisfy the principal
portion of such purchase price either by payment in cash or by the issuance of
Trust Units to the Trust. If 90% or more of the principal amount of all Series 2
Debentures outstanding on the date the Trust provides notice of a Change of
Control to the Trustee have been tendered for purchase on the Put Date, the
Trust has the right to purchase all the remaining outstanding Series 2
Debentures on the same date and at the same price, together with accrued and
unpaid interest to such date.
If a takeover bid for Series 2 Debentures, within the meaning of the
Securities Act (Ontario) is made and 90% or more of the principal amount of all
the Series 2 Debentures (other than Series 2 Debentures held at the date of the
takeover bid by or on behalf of the Offeror, Associates or Affiliates of the
Offeror or anyone acting jointly or in concert with the Offeror) are taken up
and paid for by the Offeror, the Offeror will be entitled to acquire the Series
2 Debentures of those Debentureholders who did not accept the offer on the same
terms as the Offeror acquired the first 90% of the principal amount of the
Series 2 Debentures.
The Trust may, on notice as provided in the Indenture, at its option and
(subject to any applicable regulatory approval), elect to satisfy the obligation
to repay all or any portion of the principal amount of this Series 2 Debenture
on the Maturity Date or on redemption by the issue of that number of Freely
Tradable Trust Units obtained by dividing that portion of the principal amount
of this Series 2 Debenture that the Trust elects to satisfy by the issue of
Freely Tradable Trust Units by 95% of the Current Market Price on the Maturity
Date or the date fixed for redemption, as the case may be.
The indebtedness evidenced by this Series 2 Debenture, and by all other
Series 2 Debentures now or hereafter certified and delivered under the
Indenture, is a direct unsecured obligation of the Trust, and is subordinated in
right of payment, to the extent and in the manner provided in the Indenture, to
the prior payment of all Senior Indebtedness, including any indebtedness to
trade creditors, whether outstanding at the date of the Indenture or thereafter
created, incurred, assumed or guaranteed.
The principal hereof may become or be declared due and payable before the
stated maturity in the events, in the manner, with the effect and at the times
provided in the Indenture.
The Indenture contains provisions making binding upon all Debentureholders
of Debentures outstanding thereunder (or in certain circumstances, specific
series of Debentures) resolutions passed at meetings of such Debentureholders
held in accordance with such provisions and instruments signed by the
Debentureholders of a specified majority of Debentures outstanding (or specific
series), which resolutions or instruments may have the effect of amending the
terms of this Series 2 Debenture or the Indenture.
The Indenture contains provisions disclaiming any personal liability on the
part of holders of Trust Units, the trustees, officers or agents of the Trust or
officers or directors of the Manager in respect of any obligation or claim
arising out of the Indenture or this Series 2 Debenture and limiting recourse
against the Trust to the property of the Trust.
-4-
This Series 2 Debenture may only be transferred, upon compliance with the
conditions prescribed in the Indenture, in one of the registers to be kept at
the principal office of the Trustee in Montreal, Quebec, Toronto, Ontario or
Calgary, Alberta and in such other place or places and/or by such other
registrars (if any) as the Trust with the approval of the Trustee may designate.
No transfer of this Series 2 Debenture shall be valid unless made on the
register by the registered Debentureholder hereof or the Debentureholder's
executors or administrators or other legal representatives, or the
Debentureholder's attorney duly appointed by an instrument in form and substance
satisfactory to the Trustee or other registrar, and upon compliance with such
reasonable requirements as the Trustee and/or other registrar may prescribe and
upon surrender of this Series 2 Debenture for cancellation. Thereupon a new
Series 2 Debenture or Series 2 Debentures in the same aggregate principal amount
shall be issued to the transferee in exchange hereof.
This Series 2 Debenture shall not become obligatory for any purpose until
it shall have been certified by the Trustee under the Indenture.
Capitalized words or expressions used in this Series 2 Debenture shall,
unless otherwise defined herein, have the meaning ascribed thereto in the
Indenture. TO THE EXTENT THAT THE TERMS AND CONDITIONS STATED IN THIS DEBENTURE
CONFLICT WITH THE TERMS AND CONDITIONS OF THE INDENTURE, THE LATTER SHALL
PREVAIL.
IN WITNESS WHEREOF ALGONQUIN POWER INCOME FUND has caused this Debenture to
be signed by its authorized signatory as of the __ day of ____________, 2006.
ALGONQUIN POWER INCOME FUND,
BY ITS MANAGER, ALGONQUIN POWER MANAGEMENT INC.
-------------------------------------
TRUSTEE'S CERTIFICATE
This Series 2 Debenture is one of the 6.20% Convertible Unsecured
Debentures due November 30, 2016 referred to in the Indenture within mentioned.
CIBC Mellon Trust Company
By:
---------------------------------
(Authorized Signing Officer)
REGISTRATION PANEL
(No writing hereon except by Trustee or other registrar)
Date of
Registration In Whose Name Registered Signature of Trustee or Registrar
------------ ------------------------ ---------------------------------
GRID
ALGONQUIN POWER INCOME FUND
6.20% CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
DUE NOVEMBER 30, 2016
Initial Principal Amount: $60,000,000
ADJUSTMENTS
(FOR TRUSTEE NOTATION OF CONVERSIONS)
Amount of
Date Increase Amount of Decrease New Principal Amount Trustee Notation
---- --------- ------------------ -------------------- ----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ______________________, whose address and social insurance
number, if applicable, are set forth below, this Series 2 Debenture (or
$____________ principal amount hereof) of ALGONQUIN POWER INCOME FUND standing
in the name(s) of the undersigned in the register maintained by the Trust with
respect to such Series 2 Debenture and does hereby irrevocably authorize and
direct the Trustee to transfer such Series 2 Debenture in such register, with
full power of substitution in the premises.
Date: __________________________________________________________________________
Address of Transferee: _________________________________________________________
________________________________________________________________________________
(Street Address, City, Province and Postal Code)
Social Insurance Number of Transferee, if applicable:
________________________________________________________________________________
If less than the full principal amount of the within Series 2 Debenture is to be
transferred, indicate in the space provided the principal amount which must be
$1,000 or an integral multiple thereof to be transferred.
1. The signature(s) to this assignment must correspond with the name(s) as
written upon the face of this Series 2 Debenture in every particular
without alteration or any change whatsoever. The signature(s) must be
guaranteed by a Canadian Schedule 1 chartered bank or major Canadian trust
company or by a member of a recognized Medallion Guarantee program.
Notarized or witnessed signatures are not acceptable as guaranteed
signatures.
2. The registered Debentureholder of this Series 2 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 Series 2 Debenture.
----------------------------------------------
Signature of Registered Debentureholder
----------------------------------------------
Signature of Guarantor
----------------------------------------------
Name of Institution
CONVERSION NOTICE
TO: ALGONQUIN POWER INCOME FUND
Note: All capitalized terms used herein have the meaning ascribed thereto in the
Indenture, unless otherwise indicated.
The undersigned registered Debentureholder of 6.20% Convertible Unsecured
Subordinated Debentures bearing Certificate No. ____ irrevocably elects to
convert such Debentures (or principal $______________ amount thereof) in
accordance with the terms of the Indenture and tenders herewith the Debentures,
and, if applicable, directs that the Trust Units of Algonquin Power Income Fund
issuable upon a conversion be issued and delivered to the person indicated
below.
-------------------------------------------------------------------------------
Dated: (Signature of Registered Debentureholder
If less than the full principal amount of this Debenture, indicate in the space
provided the principal amount (which must be $1,000 or integral multiples
thereof).
NOTE: If Trust Units are to be issued in the name of a person other than the
Debentureholder, (A) the signature must be guaranteed by a Canadian Schedule 1
chartered bank, a major Canadian trust company or a member of a recognized
Medallion Guarantee program and (B) all requisite transfer taxes must be
tendered by the undersigned.
(Print name in which Trust Units are to be issued, delivered and registered)
--------------------------------------------------------------------------------
Name:
--------------------------------------------------------------------------------
(Address) (City, Province and Postal Code)
--------------------------------------------------------------------------------
Name of guarantor:
--------------------------------------------------------------------------------
Authorized signature:
SCHEDULE "H"
TO THE TRUST INDENTURE BETWEEN
ALGONQUIN POWER INCOME FUND
AND
CIBC MELLON TRUST COMPANY
FORM OF REDEMPTION NOTICE
SCHEDULE "H"
FORM OF REDEMPTION NOTICE FOR SERIES 2 DEBENTURES
ALGONQUIN POWER INCOME FUND
6.20% CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
REDEMPTION NOTICE
To: Debentureholders of 6.20% Convertible Unsecured Subordinated Debentures
(the "Debentures") of Algonquin Power Income Fund (the "Trust")
Note: All capitalized terms used herein have the meaning ascribed thereto in the
Indenture mentioned below, unless otherwise indicated.
Notice is hereby given pursuant to Section 4.3 of the Trust Indenture (the
"Indenture") dated as of July 20, 2004 as amended pursuant to a supplemental
trust indenture dated as of November 10, 2006 between the Trust and CIBC Mellon
Trust Company (the "Trustee"), that the aggregate principal amount of all
Debentures outstanding (or the $____ aggregate principal amount thereof) will be
redeemed as of ____ (the "Redemption Date"), upon payment of a redemption amount
of $____ for each $1,000 principal amount of Debentures, being equal to the
aggregate of (i) $1,000, and (ii) all accrued and unpaid interest hereon to but
excluding the Redemption Date (collectively, the "Redemption Price").
The Redemption Price will be payable upon presentation and surrender of the
Debentures called for redemption at the following corporate trust office:
CIBC Mellon Trust Company
000 Xxx Xxxxxx
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Special Projects Department
The interest upon the principal amount of Debentures called for redemption shall
cease to be payable from and after the Redemption Date, unless payment of the
Redemption Price shall not be made on presentation for surrender of such
Debentures at the above-mentioned corporate trust office on or after the
Redemption Date or prior to the setting aside of the Redemption Price pursuant
to the Indenture.
[PURSUANT TO SECTION 4.6 OF THE INDENTURE, THE TRUST HEREBY IRREVOCABLY ELECTS
TO SATISFY ITS OBLIGATION TO PAY TO DEBENTUREHOLDERS THE REDEMPTION PRICE BY
ISSUING AND DELIVERING TO THE DEBENTUREHOLDERS THAT NUMBER OF FREELY TRADEABLE
TRUST UNITS OBTAINED BY DIVIDING THE AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES BY
95% OF THE CURRENT MARKET PRICE OF THE TRUST UNITS ON THE REDEMPTION DATE.
-2-
NO FRACTIONAL TRUST UNITS SHALL BE DELIVERED UPON THE EXERCISE BY THE TRUST OF
THE UNIT REDEMPTION RIGHT BUT, IN LIEU THEREOF, THE TRUST SHALL PAY THE CASH
EQUIVALENT THEREOF DETERMINED ON THE BASIS OF THE CURRENT MARKET PRICE OF TRUST
UNITS ON THE REDEMPTION DATE (LESS ANY TAX REQUIRED TO BE DEDUCTED, IF ANY).
IN THIS CONNECTION, UPON PRESENTATION AND SURRENDER OF THE DEBENTURES FOR
PAYMENT ON THE REDEMPTION DATE, THE TRUST SHALL, ON THE REDEMPTION DATE, MAKE
DELIVERY TO THE TRUSTEE, AT THE ABOVE-MENTIONED CORPORATE TRUST OFFICE, FOR
DELIVERY TO AND ON ACCOUNT OF THE DEBENTUREHOLDERS, THE NUMBER OF FREELY
TRADEABLE TRUST UNITS (IN BOOK-BASED OR CERTIFICATED FORM) TO WHICH
DEBENTUREHOLDERS ARE ENTITLED AND CASH EQUAL TO ALL ACCRUED AND UNPAID INTEREST
TO THE REDEMPTION DATE TOGETHER WITH THE CASH EQUIVALENT IN LIEU OF ALL
FRACTIONAL TRUST UNITS.]
DATED:
ALGONQUIN POWER INCOME FUND,
BY ITS MANAGER,
ALGONQUIN POWER MANAGEMENT INC.
----------------------------------------
(Authorized Trustee or Officer)
SCHEDULE "I"
TO THE TRUST INDENTURE BETWEEN
ALGONQUIN POWER INCOME FUND
AND
CIBC MELLON TRUST COMPANY
FORM OF MATURITY NOTICE
SCHEDULE "I"
FORM OF MATURITY NOTICE FOR SERIES 2 DEBENTURES
ALGONQUIN POWER INCOME FUND
6.20% CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
MATURITY NOTICE
To: Debentureholders of 6.20% Convertible Unsecured Subordinated Debentures
(the "Debentures") of Algonquin Power Income Fund (the "Trust")
Note: All capitalized terms used herein have the meaning ascribed thereto in the
Indenture mentioned below, unless otherwise indicated.
Notice is hereby given pursuant to Section 4.10(b) of the Trust Indenture (the
"Indenture") dated as of July 20, 2004 as amended pursuant to a supplemental
trust indenture dated as of November 10, 2006 between the Trust and CIBC Mellon
Trust Company, as trustee (the "Trustee"), that the Debentures are due and
payable on November 30, 2016 (the "Maturity Date") and the Trust hereby advises
the Debentureholders that it will deliver to Debentureholders that number of
Freely Tradeable Trust Units equal to the number obtained by dividing the
aggregate principal amount of such Debentures by 95% of the Current Market Price
of Trust Units on the Maturity Date. In the event that the Trust elects to issue
and deliver Trust Units as aforesaid, upon presentation and surrender of the
Debentures, the Trust shall pay or cause to be paid in cash to the
Debentureholder all accrued and unpaid interest to the Maturity Date, together
with the cash equivalent representing fractional Trust Units, and shall, on the
Maturity Date, send to the Trustee Freely Tradeable Trust Units (in book-based
or certificated form) to which the Debentureholder is entitled.
DATED:
ALGONQUIN POWER INCOME FUND,
BY ITS MANAGER,
ALGONQUIN POWER MANAGEMENT INC.
----------------------------------------
(Authorized Trustee or Officer)
SCHEDULE "J"
TO THE TRUST INDENTURE BETWEEN
ALGONQUIN POWER INCOME FUND
AND
CIBC MELLON TRUST COMPANY
FORM OF NOTICE OF CONVERSION
SCHEDULE "J"
FORM OF NOTICE OF CONVERSION FOR SERIES 2 DEBENTURES
CONVERSION NOTICE
To: ALGONQUIN POWER INCOME FUND
Note: All capitalized terms used herein have the meaning ascribed thereto in the
Trust Indenture mentioned below, unless otherwise indicated.
The undersigned registered Debentureholder of 6.20% Convertible Unsecured
Subordinated Debentures bearing Certificate No. _____ irrevocably elects to
convert such Debentures (or $_____ principal amount thereof*) in accordance with
the terms of the Trust Indenture dated as of July 20,2004 as amended pursuant to
a supplemental trust indenture dated as of November 10, 2006 between the Trust
and CIBC Mellon Trust Company and tenders herewith the Debentures, and, if
applicable, directs that the Trust Units issuable upon a conversion be issued
and delivered to the person indicated below.
Dated:
------------------------------ ----------------------------------------
(Signature of Registered
Debentureholder)
* If less than the full principal amount of the Debentures, indicate in the
space provided the principal amount which must be $1,000 or integral
multiples thereof.
NOTE: If Trust Units are to be issued in the name of a Person other than the
Debentureholder, (A) the signature must be guaranteed by a Canadian
Schedule 1 chartered bank, a major Canadian trust company or a member of a
recognized Medallion Guarantee program and (B) all requisite transfer
taxes must be tendered by the undersigned.
(Print name in which Trust Units are to be issued, delivered and registered)
------------------------------------- ---------------------------------------
(Address) (City, Province and Postal Code)
Name of guarantor:
Authorized signature:
SCHEDULE"K"
TO THE TRUST INDENTURE BETWEEN
ALGONQUIN POWER INCOME FUND
AND
CIBC MELLON TRUST COMPANY
FORM OF PUT EXERCISE NOTICE
SCHEDULE "K"
FORM OF NOTICE OF PUT EXERCISE
PUT EXERCISE NOTICE
To: ALGONQUIN POWER INCOME FUND
Note: All capitalized terms used herein have the meaning ascribed thereto in the
Trust Indenture mentioned below, unless otherwise indicated.
The undersigned registered Debentureholder of 6.20% Convertible Unsecured
Subordinated Debentures bearing Certificate No. _____ irrevocably elects to put
such Debentures (or $_____ principal amount thereof*) to Algonquin Power Income
Fund ("Trust") to be purchased by the Trust on _____ (the "Put Date") in
accordance with the terms of the Trust Indenture dated as of July 20, 2004 as
amended pursuant to a supplemental trust indenture dated as of November 10, 2006
between the Trust and CIBC Mellon Trust Company at a price of $1,010 for each
$1,000 principal amount of Debentures plus all accrued and unpaid interest
hereon to, but excluding, the Put Date (collectively, the "Total Put Price") and
tenders herewith the Debentures.
Dated:
------------------------------ ----------------------------------------
(Signature of Registered
Debentureholder)
* If less than the full principal amount of the Debentures, indicate in the
space provided the principal amount which must be $1,000 or integral
multiples thereof.
The Total Put Price will be payable upon presentation and surrender of the
Debentures with this form on or after the Put Date at the following corporate
trust office:
CIBC Mellon Trust Company
000 Xxx Xxxxxx
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Special Projects Department
The interest upon the principal amount of Debentures put to the Trust shall
cease to be payable from and after the Put Date unless payment of the Total Put
Price shall not be made on presentation for surrender of such Debentures at the
above mentioned corporate trust office on or after the Put Date or prior to the
setting aside of the Total Put Price pursuant to the Trust Indenture.
