Bill C-5
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Notice of
error
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264. (1) A director or officer of a
cooperative shall, without delay, notify the
auditor and the audit committee, if any, of any
error or misstatement of which the director or
officer becomes aware in a financial statement
that the auditor or a former auditor has
reported on.
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Errors in
financial
statements
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(2) If the auditor or former auditor of a
cooperative is notified or becomes aware of an
error or misstatement in a financial statement
on which the auditor or former auditor has
reported, and if in their opinion the error or
misstatement is material, the auditor or former
auditor must inform each director
accordingly.
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Duty of
directors
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(3) When under subsection (2) the auditor
or former auditor informs the directors of an
error or misstatement in a financial statement,
the directors shall
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Qualified
privilege
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265. Any oral or written statement or report
made under this Act by the auditor or former
auditor of a cooperative has qualified
privilege.
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PART 14 |
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TRUST INDENTURES |
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Interpretation |
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Definitions
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266. The definitions in this section apply in
this Part.
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``event of
default'' « cas de défaut »
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``event of default'' means, in relation to a trust
indenture, an event specified in the trust
indenture on the occurrence of which the
principal, interest and other money payable
under the trust indenture become or may be
declared to be payable before maturity, but
the event is not an event of default until all
the conditions set out in the trust indenture
in connection with the giving of notice of
the event have been satisfied or the period
for giving the notice has elapsed.
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``guarantor'' « caution »
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``guarantor'' means a person that has
guaranteed an obligation of an issuer under
a trust indenture.
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``issuer'' « émetteur »
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``issuer'' means a cooperative that has issued,
is about to issue or is in the process of
issuing debt obligations.
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``trustee'' « fiduciaire »
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``trustee'' means a person appointed as trustee
under the terms of a trust indenture to which
a cooperative is a party, and includes a
successor trustee.
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``trust
indenture'' « acte de fiducie »
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``trust indenture'' means a deed, indenture or
other document, including a supplement or
amendment to such a document, made by a
cooperative under which the cooperative
issues debt obligations and in which a
person is appointed as trustee for the
holders of the debt obligations issued under
it.
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Application |
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Application
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267. (1) This Part applies to a trust indenture
if the debt obligations issued or to be issued
under it are part of a distribution to the public.
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Exemptions
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(2) The Director may, in writing, exempt a
trust indenture from the application of this
Part if, in the Director's opinion, the trust
indenture and the debt obligations under it are
subject to a law of another jurisdiction that is
substantially equivalent to the provisions of
this Act relating to trust indentures.
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General |
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Conflict of
interests
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268. (1) No person may be appointed as
trustee if there is a material conflict of
interests between the person's role as trustee
and any other role of the person.
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Eliminating
conflict of
interests
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(2) A trustee must, no later than ninety days
after the trustee becomes aware that a material
conflict of interests exists,
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Validity
despite
conflict
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269. A trust indenture, any debt obligations
issued under it and the security interest
effected by them are valid even if there is a
material conflict of interests of the trustee.
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Removal of
trustee
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270. If a trustee is appointed in
contravention of subsection 268(1) or if a
trustee contravenes subsection 268(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 any terms that it thinks
fit.
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Trustee
application
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271. A trustee, or at least one of the trustees
if more than one is appointed, must be a trust
company incorporated under the laws of
Canada or a province and authorized to carry
on business as a trustee.
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List of
security
holders
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272. (1) A holder of debt obligations 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, no later than fifteen
days after the delivery to the trustee of the
statutory declaration, a list setting out the
following information, as shown on the
records maintained by the trustee on the day
the statutory declaration is delivered to the
trustee:
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Duty of issuer
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(2) On the demand of a trustee, the issuer
must provide the trustee with the information
required to enable the trustee to comply with
subsection (1).
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When
applicant is
entity
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(3) If the person requiring the trustee to
provide a list under subsection (1) is an entity,
the statutory declaration required under that
subsection may be made by a director or an
officer of the entity or a person acting in a
similar capacity.
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Contents of
statutory
declaration
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(4) The statutory declaration must state
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Use of list
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(5) No person shall use a list obtained under
this section except in connection with
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Compliance
with trust
indentures
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273. (1) An issuer or a guarantor of a debt
obligation issued or to be issued under a trust
indenture must provide the trustee with
evidence of compliance with the conditions in
the trust indenture before undertaking
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Compliance
by issuer or
guarantor
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(2) On the demand of a trustee, the issuer or
guarantor must 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.
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Evidence of
compliance
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(3) The following documents constitute
evidence of compliance for the purposes of
subsections (1) and (2):
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Further
evidence of
compliance
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(4) The evidence of compliance described
in subsection (3) must include a statement by
the person giving the evidence
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Trustee may
require
evidence
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274. (1) On request of a trustee, the issuer or
guarantor must provide the trustee with
evidence in any form that the trustee requires
of compliance with any condition relating to
any action required or permitted to be taken by
the issuer or guarantor under the trust
indenture.
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Certificate of
compliance
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(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 must
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 of the failure.
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Notice of
default
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275. A trustee must, no later than thirty days
after the trustee becomes aware of the
occurrence of an event of default, give to the
holders of debt obligations 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 debt obligations to withhold the
notice and so informs the issuer and guarantor
in writing.
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Duty
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276. (1) In exercising powers and
discharging duties, the trustee must
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Reliance on
statements
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(2) Despite 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.
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No
exculpation
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277. No term of a trust indenture or of an
agreement between a trustee and the holders
of debt obligations issued under the indenture
or agreement or between the trustee and the
issuer or guarantor operates to relieve a trustee
from the duties imposed on the trustee by this
Part.
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PART 15 |
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RECEIVERS AND RECEIVER-MANAGERS |
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Functions of
receiver
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278. (1) Subject to the rights of secured
creditors, a receiver of any property of a
cooperative may
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If receiver not
manager
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(2) Despite subsection (1) but subject to any
order that the court may make under section
282, a receiver who is not appointed manager
of the cooperative may not carry on the
business of the cooperative.
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Functions of
receiver-mana
ger
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279. Despite section 278, if a receiver of a
cooperative is also appointed manager of the
cooperative, the receiver may carry on any
business of the cooperative to protect the
security interest of those on whose behalf he
or she was appointed.
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Directors'
powers cease
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280. If a receiver or receiver-manager is
appointed by a court or pursuant to an
instrument, no director shall exercise the
directors' powers that the receiver or
receiver-manager is authorized to exercise
until the receiver or receiver-manager is
discharged.
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If receiver
appointed by
court
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281. (1) A receiver or receiver-manager
appointed by a court must act in accordance
with any directions of the court.
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If receiver
appointed
pursuant to
instrument
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(2) A receiver or receiver-manager
appointed pursuant to an instrument must act
in accordance with the instrument and any
direction that the court may make under
section 282.
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Duty
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(3) A receiver or receiver-manager must
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Directions
given by court
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282. A court may, on the application of a
receiver or receiver-manager appointed by a
court or pursuant to a document, or any other
interested person, make any order giving
directions on any matter relating to the duties
of the receiver or receiver-manager appointed
by it or pursuant to a document that it
considers appropriate, including an order
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Required
action
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283. A receiver or receiver-manager must
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