Order pursuant to subsection 46(4) of the Business Corporations Act (Ontario). Trust indenture governed by the United States Trust Indenture Act of 1939 is exempt from the requirements of Part V of the Business Corporations Act (Ontario) in connection with a southbound offering of debt securities under the Multijurisdictional Disclosure System.
Business Corporations Act, R.S.O. 1990, c. B.16, as amended, ss. 46(2), 46(4), Part V.
Securities Act, R.S.O. 1990, c. S.5, as amended.
Securities Act of 1933, Act of May 27, 1933, 48 Stat, 74, 15 U.S. Code, Secs. 77a-77aa, as amended.
Trust Indenture Act of 1939, Act of August 3, 1939, 53 Stat, 1149, 15 U.S. Code, Secs. 77aaa-77bbb, as amended.
National Instrument Cited
National Instrument 71-101 Multijurisdictional Disclosure System (1998) 21 O.S.C.B. 6919.
IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT
R.S.O. 1990, C.B.17, AS AMENDED
IN THE MATTER OF
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
AND FOUR SEASONS HOTELS INC.
(Subsection 46(4) OBCA)
UPON the application of The Bank of Nova Scotia Trust Company of New York (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 46(4) of the Business Corporations Act (Ontario) (the "OBCA") exempting a trust indenture of Four Seasons Hotels Inc. (the "Issuer") from the requirements of Part V of the OBCA;
AND UPON considering the application and the recommendation of staff of the Commission;
AND UPON it being represented by the Issuer and the Applicant to the Commission that:
1. The Issuer is a corporation existing under the OBCA and is a reporting issuer not in default under the Securities Act, R.S.O. 1990, c.S.5, as amended, and the regulations thereunder.
2. The Applicant is a United States ("U.S.") based financial institution and is to be a trustee under an indenture (the "Indenture") to be made between the Issuer and the Applicant in respect of debt securities (the "Securities") of the Issuer to be issued thereunder.
3. The Securities are to be sold by the Issuer through certain undetermined investment banks (collectively, the "Underwriters"), as underwriters, pursuant to the terms of an agreement to be entered into among the Underwriters and the Issuer.
4. The Issuer will file a shelf prospectus with the Commission pursuant to National Instrument 44-102 -- Shelf Distributions (the "Shelf Prospectus") and, pursuant to the multijurisdictional disclosure system, will file with the United States Securities and Exchange Commission a shelf registration statement on Form F-10 (the "Registration Statement").
5. The Securities are to be offered exclusively to the public in the U.S. and are to be registered under the U.S. Securities Act of 1933, as amended, pursuant to the Registration Statement.
6. The Securities will not be listed on any stock exchange.
7. The Issuer will not, and will require each of the Underwriters to agree that it will not, offer, sell or deliver the Securities directly or indirectly in Canada or to any resident of Canada in contravention of the securities laws of any province or territory of Canada, and the Issuer will require that any selling agreement or similar arrangement made by an Underwriter with respect to the Securities will contain a restriction to the same effect.
8. As the Issuer will file a shelf prospectus with the Commission, Part V of the OBCA will apply to the Indenture by virtue of subsection 46(2) of the OBCA.
9. The Indenture will be subject to the U.S. Trust Indenture Act of 1939 (the "Trust Indenture Act"), which regulates the issue of debt securities under trust indentures in the U.S. in a manner consistent with Part V of the OBCA.
AND UPON the Commission being of the opinion that to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to subsection 46(4) of the OBCA, that the Indenture is exempt from Part V of the OBCA, provided that the Indenture is governed by and subject to the Trust Indenture Act.
February 17, 2004.
"Paul M. Moore"
"Robert W. Davis"