PART VICorporate Governance (continued)
Corporate Records (continued)
Trust Indentures (continued)
Marginal note:Conflict of interest
Marginal note:Eliminating conflict of interest
(2) A trustee shall, within ninety days after the trustee becomes aware that a material conflict of interest exists,
Marginal note:Validity despite conflict
298 A trust indenture and any subordinated indebtedness issued thereunder are valid notwithstanding a material conflict of interest of the trustee.
Marginal note:Removal of trustee
299 If a trustee is appointed in contravention of subsection 297(1) or if a trustee contravenes subsection 297(2), any interested person may apply to a court for an order that the trustee be replaced, and the court may make an order on such terms as it thinks fit.
Marginal note:Trustee qualifications
300 A trustee, or at least one of the trustees if more than one is appointed, must be
(b) a body corporate that is incorporated by or under an Act of the legislature of a province and authorized to carry on business as a trustee.
- 1991, c. 46, ss. 300, 577
- 2007, c. 6, s. 18
Marginal note:List of security holders
301 (1) A holder of subordinated indebtedness issued under a trust indenture may, on payment to the trustee of a reasonable fee and on delivery of a statutory declaration to the trustee, require the trustee to provide, within fifteen days after the delivery to the trustee of the statutory declaration, a list setting out
(a) the names and addresses of the registered holders of the outstanding subordinated indebtedness,
(b) the principal amount of outstanding subordinated indebtedness owned by each such holder, and
(c) the aggregate principal amount of subordinated indebtedness outstanding
as shown on the records maintained by the trustee on the day the statutory declaration is delivered to that trustee.
Marginal note:Duty of issuer
(2) On the demand of a trustee, the issuer of subordinated indebtedness shall provide the trustee with the information required to enable the trustee to comply with subsection (1).
Marginal note:Where applicant is entity
(3) Where the person requiring the trustee to provide a list under subsection (1) is an entity, the statutory declaration required under that subsection shall be made by a director or an officer of the entity or a person acting in a similar capacity.
Marginal note:Contents of statutory declaration
(4) The statutory declaration required under subsection (1) must state
Marginal note:Use of list
(5) No person shall use a list obtained under this section except in connection with
Marginal note:Compliance with trust indentures
(a) the issue, certification and delivery of subordinated indebtedness under the trust indenture, or
(b) the satisfaction and discharge of the trust indenture,
provide the trustee with evidence of compliance with the conditions in the trust indenture in respect thereof.
Marginal note:Compliance by issuer or guarantor
(2) On the demand of a trustee, the issuer or guarantor of subordinated indebtedness issued or to be issued under a trust indenture shall provide the trustee with evidence of compliance with the conditions in the trust indenture by the issuer or guarantor in respect of any act to be done by the trustee at the request of the issuer or guarantor.
Marginal note:Evidence of compliance
(3) The following documents constitute evidence of compliance for the purposes of subsections (1) and (2):
(a) a statutory declaration or certificate made by a director or an officer of the issuer or guarantor stating that the conditions referred to in subsections (1) and (2) have been complied with;
(b) an opinion of legal counsel that the conditions of the trust indenture requiring review by legal counsel have been complied with, if the trust indenture requires compliance with conditions that are subject to review by legal counsel; and
(c) an opinion or report of the auditors of the issuer or guarantor, or such other accountant as the trustee selects, that the conditions of the trust indenture have been complied with, if the trust indenture requires compliance with conditions that are subject to review by auditors.
Marginal note:Further evidence of compliance
(4) The evidence of compliance referred to in subsection (3) shall include a statement by the person giving the evidence
(a) declaring that the person has read and understands the conditions of the trust indenture referred to in subsections (1) and (2);
(b) describing the nature and scope of the examination or investigation on which the person based the certificate, statement or opinion; and
(c) declaring that the person has made such examination or investigation as the person believes necessary to enable the statements to be made or the opinions contained or expressed therein to be given.
Marginal note:Trustee may require evidence
303 (1) On the request of a trustee, the issuer or guarantor of subordinated indebtedness issued under a trust indenture shall provide the trustee with evidence in such form as the trustee requires of compliance with any condition thereof relating to any action required or permitted to be taken by the issuer or guarantor under the trust indenture.
Marginal note:Certificate of compliance
(2) At least once in each twelve month period beginning on the date of the trust indenture and at any other time on the demand of a trustee, the issuer or guarantor of subordinated indebtedness issued under a trust indenture shall provide the trustee with a certificate stating that the issuer or guarantor has complied with all requirements contained in the trust indenture that, if not complied with, would, with the giving of notice, lapse of time or otherwise, constitute an event of default, or, if there has been failure to so comply, giving particulars thereof.
Marginal note:Notice of default
304 A trustee shall, within thirty days after the trustee becomes aware of the occurrence thereof, give to the holders of subordinated indebtedness issued under a trust indenture notice of every event of default arising under the trust indenture and continuing at the time the notice is given, unless the trustee believes on reasonable grounds that it is in the best interests of the holders of the subordinated indebtedness to withhold the notice and so informs the issuer and guarantor in writing.
Marginal note:Duty of care
Marginal note:Reliance on statements
(2) Notwithstanding subsection (1), a trustee is not liable if the trustee relies in good faith on statements contained in a statutory declaration, certificate, opinion or report that complies with this Act or the trust indenture.
Marginal note:No exculpation
306 No term of a trust indenture or of any agreement between a trustee and the holders of subordinated indebtedness issued thereunder or between the trustee and the issuer or guarantor operates to relieve a trustee from the duties imposed on the trustee by sections 297, 301 and 304 and subsection 305(1).
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