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1 JUNE 2013 BANKING

2 2400, 525-8th Avenue SW, Calgary, Alberta T2P 1G1 Phone: Fax: On Record Contents: Shareholder Lenders Beware: Lower Ranking Priority Following Bankruptcy Page 1 The Oil and Gas Lease: Who Would Have Thought Of It As Personal Property? Page 3 Cape Town Convention Page 6 From Unsecured to Secured: The Dangers of All Obligations Clauses in Security Agreements Page 8 Banking and other issues of On Record are available on our web site Banking, Editors-in-Chief Cal D. Johnson, q.c. cdj@bdplaw.com Simina Ionescu-Mocanu sionescu@bdplaw.com Banking, Managing Editor Rhonda G. Wishart rwishart@bdplaw.com Contributing Writers and Researchers: Dino Deluca, Colby Dewart, Adrian Etchell, Trevor Batty, Ashley Weldon, Jocelyn Turnbull and Matthew Grant. Contact For additional copies, address changes, or to suggest articles for future consideration, please contact the Managing Editor. General Notice On Record is published by BD&P to provide our clients with timely information as a value-added service. The articles contained here should not be considered as legal advice due to their general nature. Please contact the authors, or other members of our Banking team directly for more detailed information or specific professional advice. Banking Lawyers Betteridge, Robert D. (Bob) Carleton, J. Robert DeLuca, G. Dino Fehr, Trish M. Grout, A. David Ionescu-Mocanu, Simina Johnson q.c., Cal D. Langdon, Margot D. Martin, Christie E. Misri, Nathaniel S. Pybus, Kathy L. Smith, Nancy D. Tremblay, Janie Wilmot, John A rdb@bdplaw.com rcarleton@bdplaw.com gdd@bdplaw.com pmf@bdplaw.com dgrout@bdplaw.com sionescu@bdplaw.com cdj@bdplaw.com mdl@bdplaw.com cmartin@bdplaw.com nmisri@bdplaw.com klp@bdplaw.com nsmith@bdplaw.com jtremblay@bdplaw.com jaw@bdplaw.com If you would like any further information on any members of our team, such as a more detailed resume, please feel free to contact the team member or the Managing Editor. You may also refer to our website at

3 1 Shareholder Lenders Beware: LOWER RANKING PRIORITY FOLLOWING BANKRUPTCY By Jocelyn Turnbull, Student-at-Law Introduction A recent decision from the Quebec Court of Appeal (the Court of Appeal ) has come as a cautionary tale for shareholders contemplating making loans to the corporations in which they invest. The Court of Appeal, in Doorcorp Installations Inc. 1 ( the Doorcorp case ), discussed the application of section 139 of the Bankruptcy and Insolvency Act 2 ( BIA ). Section 139 states that a party who advances money to a company, on the understanding that it will receive a portion of the company s profits or that it will be paid a varying interest rate based on those profits, will become the very last creditor to recover if the company declares bankruptcy. In the Doorcorp case, a generous shareholder injected over $1.5 million into Doorcorp Installations Inc. ( Doorcorp ) throughout 2006 and No loan agreement was created, and Doorcorp simply noted the loan in its accounting records. In late 2007, Doorcorp filed for bankruptcy and the generous shareholder applied to the bankruptcy trustee for the repayment of the outstanding amounts.

4 2 BANKING Trial Court Decision When the trustee refused to repay all of the amounts to the shareholder, the shareholder turned to the Superior Court of Quebec ( the Trial Court ) for a characterization of his loans. The Trial Court held that half of the funds provided by the shareholder to Doorcorp were an investment (i.e. equity), which would be recoverable only after all debt claims against Doorcorp were satisfied. The implications of this finding are not discussed here. More importantly, the Trial Court also held that the other half of the funds advanced by the shareholder fell under section 139 of the BIA. This meant that the shareholder would not be entitled to be repaid those funds until (and only if) every other creditor fully recovered its indebtedness from the proceeds of Doorcorp s bankruptcy. Court of Appeal Decision The shareholder appealed. The Court of Appeal reversed the Trial Court and held that section 139 of the BIA did not apply to the shareholder s loan to Doorcorp. In the course of the appeal proceedings, it was argued that the shareholder s loan was sufficiently connected to Doorcorp s profits to make the loan subject to section 139 of the BIA, since the loan s indirect effect was to allow the payment of a dividend to the shareholder or increase the value of Doorcorp s capital stock. The Court of Appeal disagreed with this assessment and adopted a narrow interpretation of section 139. In doing so, the Court of Appeal looked at prior case law and stated that it required a clear indication that the loan or its interest rate actually depended on Doorcorp s profits. The mere absence of a loan agreement or a repayment schedule was therefore insufficient to trigger the application of section 139. The Court of Appeal went one step further and stated that the shareholder s agreement to receive loan repayments when and if Doorcorp could afford them, did not tie the actual payment amounts or interest rates to Doorcorp s profits. To that end, the Court of Appeal suggested that the purpose of an advance is irrelevant to the section 139 analysis if the advance does not meet the test set out in the BIA. To find that the funds forwarded by the shareholder were captured by section 139, the Court of Appeal needed to be satisfied that the payments were tied to profits or that the interest rate varied based on the profits. Neither was found in this case and the Court of Appeal ordered the disputed portion of the loan to be repaid at the same time as the other loans that Doorcorp owed to its other unsecured creditors. Thoughts Going Forward In the end, the shareholder managed to recover some of the amounts lent to Doorcorp. Some would argue that this case is a happy ending for shareholders everywhere. We are not so convinced. This case clearly shows how tricky and complicated a shareholder loan can become in the absence of certain basic steps taken to protect the shareholder. In light of the Doorcorp case, and as general rules that are advisable in any situation, a shareholder contemplating a shareholder loan should keep in mind and follow these four basic rules: 1. Document the loan agreement in writing, 2. Set a rate of interest for the loan that is not tied to the borrower s success, 3.Clearly set out the loan s repayment terms, and 4. Obtain security for the loan (this was not addressed in the Doorcorp case; however, security provides a greater priority in a bankruptcy or realization to the shareholder loan and should be obtained by a lending shareholder, so long as doing so breach other financing arrangements of the company ). Footnotes QCCA RSC, 1985 c B-3, as amended This case clearly shows how tricky and complicated a shareholder loan can become in the absence of certain basic steps taken to protect the shareholder.

5 3 The Oil and Gas Lease Who Would Have Thought Of It As Personal Property? By Ashley Weldon and Trevor Batty Introduction In the very recent Alberta case of Kasten Energy Inc. v. Shamrock Oil & Gas Ltd., 1 (the Kasten case ) the Court of Queen s Bench (the Court ) considered an application by Kasten Energy Inc. ( Kasten ) to appoint a receiver and manager over all of the assets of Shamrock Oil & Gas Ltd. ( Shamrock ). While the Court delivered a concise summary of the applicable test for the appointment of a receiver and manager, it was the Court s consideration of the novel issue of whether a Crown oil and gas lease is a form of personal property that has raised alarm bells for both lenders and borrowers in the context of the nature of assets which can be swept into the security basket of a common general security agreement ( GSA ). The Facts Shamrock held a Crown petroleum and natural gas lease (the Lease ) pursuant to which it was developing an oil well in the Sawn Lake region of Alberta (the Sawn Lake Well ). Shamrock contracted with Premier CAT Service Ltd. ( Premier CAT ) to construct a road to the Sawn Lake Well site for which Shamrock became indebted to Premier CAT for over $560,000. The debt was payable within 60 days from invoice at an interest rate of 24%. In support of the debt, Shamrock executed a GSA in favour of Premier CAT granting a security interest in all of Shamrock s present and after acquired personal property. In general terms, personal property comprises the broad category of assets which are not considered to be real estate or interests in land i.e. chattels, equipment, inventory, goods, etc. Subsequently, Premier CAT assigned Shamrock s debt and its GSA to Kasten via a debt assignment agreement.

6 4 BANKING As a result, Shamrock became indebted instead to Kasten, and the registration of the GSA at the Personal Property Registry was amended to show that Kasten was now the secured creditor of Shamrock under the GSA. Approximately nine months later, Shamrock issued a notice of intention to make a proposal pursuant to the Bankruptcy and Insolvency Act (the BIA ), followed by a proposal to all creditors whereby Stout Energy Inc. ( Stout ), grandparent to Shamrock, would operate the Sawn Lake Well under a joint operating agreement ( JOA ) with Shamrock. The JOA stipulated that, after recovery of Stout s capital investment, 80% of the net revenue generated from operations would be paid to secured creditors and the remaining 20% to unsecured creditors, until full repayment. Kasten voted against the proposal; however, the proposal was ultimately approved by the Court as all of the unsecured creditors voted in favour of it. One month later, and pursuant to the BIA, Kasten issued a demand for payment and notice of intention to enforce security to Shamrock for over $750,000. Kasten also commenced an application against Shamrock seeking an order for the appointment of a receiver and manager of Shamrock s assets under the Judicature Act. Whether a Receiver and Manager Should Be Appointed We Can Agree With This In considering Kasten s application for the appointment of a receiver and manager, the Court highlighted that the applicable test was whether it was just or convenient to make such an order and listed several factors to consider when making such a determination, including, among others: whether irreparable harm would be caused if no order was made; the risk to the security holder taking into consideration the size of the debtor s equity in the assets and the need for protection or safeguarding of the assets while litigation takes place; whether the security documentation provided for the appointment of a receiver; and the balance of convenience of the parties. In support of its application, Kasten argued that, following the approval of the BIA proposal, it was unlikely that Shamrock would be able to repay Kasten s substantial debt in a timely manner. Further, Kasten noted that it had the right to appoint a receiver manager under the provisions of the GSA, and also alleged that there was a risk of Shamrock s assets deteriorating under the JOA since Stout, as Operator, was incurring significant operating expenses while funneling revenues to creditors in a selective manner. Kasten submitted that the balance of convenience favoured the appointment of a receiver and manager who would be in a better position to distribute revenues in an unbiased and equitable manner to all interested parties. In opposing the application, Shamrock submitted that Kasten had not demonstrated irreparable harm, and that Stout had injected significant resources to improve the revenue potential of the Sawn Lake Well. Additionally, Shamrock argued that there was a risk that Stout would cease its funding if a receiver and manager was appointed. It also noted that it had initiated a sale process of the Sawn Lake Well and did not perceive any risk if Kasten waited until the sale was completed. The Court acknowledged that, although it is a factor to be considered, a finding of irreparable harm is not essential for the appointment of a

7 5 The Court s erroneous belief that it needed to fit the Lease under Kasten s GSA in order for the receiver and manager to have the authority to operate the wells led directly to this problematic decision. receiver and manager. Further, the Court was unpersuaded that Stout would cease funding Shamrock s operations with respect to the Sawn Lake Well. The Court highlighted that Shamrock had obviously not made any substantial payments to Kasten from the revenues from the Sawn Lake Well following approval of the proposal, and that Kasten was justified in believing that it would likely encounter difficulties seeking repayment from Shamrock. The Court also noted that there were no formal bids received in connection with potential sale of the Sawn Lake Well as of the bid deadline. The Court held that it was just, convenient and appropriate in the circumstances to appoint a receiver and manager over Shamrock s assets, but suspended its authority for approximately four months to accommodate any potential sale of the Sawn Lake Well. Whether the GSA Covers the Crown Petroleum and Natural Gas Lease This is Problematic The Court also considered the question of whether the Lease was covered by the GSA. In line with what we would suggest is the accepted (and preferable) legal characterization, Shamrock submitted that the authority of a receiver and manager did not extend to the Lease, since an oil and gas lease is a profit a prendre (i.e. an interest in land excluded from being personal property under the Personal Property Security Act (Alberta) (the PPSA ). Kasten acknowledged that the GSA was not directly enforceable against oil and gas in the ground, but argued that it became enforceable once the oil and gas came out of the ground and was captured by Shamrock. In its analysis, the Court relied exclusively on the Supreme Court of Canada s (the SCC ) decision in Saulnier v. Royal Bank of Canada 2, where the SCC considered the term property in the context of a commercial fishing license under the BIA and the Nova Scotia PPSA. In its reasoning, the SCC stated that the subject matter of the license (i.e. the right to participate in a fishery that is exclusive to license holders) coupled with a proprietary interest in the fish caught pursuant to its terms, bears a reasonable analogy to rights traditionally considered at common law to be proprietary in nature Accordingly, the Court in the Kasten case concluded that an oil and gas lease is analogical and identical to a commercial fishing license i.e. the leaseholder has a beneficial interest to the earnings generated by its oil and gas lease during the leasehold term. Based on this strained analogy, the Court concluded that Shamrock s Lease was subject to both the GSA and the PPSA and was transferrable within the power and authority of a court-appointed receiver and manager. Commentary What s Not to Like Industry commentary on the Kasten case has been understandably critical of the Court s comments and conclusions on categorizing an oil and gas lease as a form of personal property. Prior to this decision, an oil and gas lease was understood to be an interest in land, and security interests specific to an individual oil and gas lease were perfected by registration of the security interest either at the Land Titles Office (in the case of a freehold lease) or at Alberta Energy (in the case of a Crown lease). This finding creates a great deal of confusion, as it indicates that a security interest in an oil and gas lease can also be perfected by registration of a security interest at the Personal Property Registry (since such a lease is now deemed to be an intangible form of personal property). Additionally, commentators have expressed the view that it was unnecessary to shoehorn an oil and gas lease into the category of personal property in order to reach the conclusion that the Court had the authority to appoint a receiver and manager under the Judicature Act. Under the Judicature Act there is no requirement that the appointing creditor have security over all of the assets that are to be administered by the courtappointed receiver and manager. Indeed, there are numerous instances where even unsecured creditors have used the authority of the Judicature Act to appoint a receiver and manager where the Court has found such relief to be just and appropriate. The Court s erroneous belief that it needed to fit the Lease under Kasten s GSA in order for the receiver and manager to have the authority to operate the wells led directly to this problematic decision. There are many potential practical problems that may arise from this decision, including: It may lead to priority disputes between lenders (or other creditors) who have registered a GSA against the debtor at the Personal Property Registry and creditors who have registered encumbrances against the real property, either at the Land Titles Office or Alberta Energy. Parties acquiring oil and gas leases would have to ensure not only that the title is clear of liens or intervening interests, but also that they have obtained no interest letters from creditors with GSAs or other security interests registered against the vendor s intangible personal property. Operator s liens may now be less effective, as the enforcement of an operator s lien will be subject to the rights of creditors who have registered security interests in the defaulting working interest owners intangible personal property. The scope of a debtor s property subject to a receivership order granted under the Judicature Act is now in question, as the decision in the Kasten case seems to indicate that it should be limited to property or collateral over which the appointing creditor has a security interest. Fortunately, the Kasten case is a decision of the Court of Queen s Bench of Alberta as opposed to Alberta s Court of Appeal, which means that it will not be binding on the Court in future cases of a significant nature. It will be interesting to see whether this decision is followed, overruled or otherwise ignored going forward. Footnotes ABQB SCC 58

8 6 BANKING Cape Town By Dino Deluca, Colby Dewart and Adrian Etchell On April 1, 2013, the Convention on International Interests in Mobile Equipment and the accompanying Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment came into force in Canada. The Convention and Protocol are commonly referred to as the Cape Town Convention (the CTC ), since they were signed in Cape Town, South Africa on November 16, The CTC creates an international legal regime to: facilitate the acquisition and financing of certain aircraft and engines, by providing for the creation of international interests which will be recognized in countries that have ratified the CTC; provide creditors with a range of basic default and insolvency-related remedies and, where there is evidence of default, a means of obtaining speedy interim relief pending final determination of a claim; and establish an electronic international registry system for the registration of international interests which gives notice of their existence to third parties and enables creditors to preserve their priority against subsequently registered interests, unregistered interests and an insolvency administrator. Application of the CTC The CTC will apply to an aircraft transaction if the following conditions have been met: a debtor and a creditor have entered into a valid security agreement, conditional sale agreement or leasing agreement creating an international interest ( Transaction Agreement ); the aircraft or engine is considered an Aircraft Object under the CTC, meaning: an airframe must be type certified as being able to transport at least 8 persons (including crew) or goods in excess of 2,750 kilograms; an engine must be one powered by jet propulsion, turbine or piston technology. If it is a jet propulsion engine then it must have at least 1,750 lb of thrust or its equivalent. In the case of a piston or turbine powered engine, it must have at least 550 rated take-off shaft horsepower or its equivalent; and a helicopter must be type certified to transport at least 5 persons (including crew) or goods in excess of 450 kilograms; and the Aircraft Object is registered on the aircraft registry of a country that has ratified the CTC (a Contracting State ) and/or the debtor is situated in a Contracting State at the time the Transaction Agreement is concluded. When the CTC came into force, Canada was a Contracting State, but the CTC is only applicable in the following Provinces and Territories: British Columbia, Alberta, Saskatchewan, Ontario, Quebec, Nova Scotia, Newfoundland and Labrador and Northwest Territories. As aircraft engines may be leased or purchased and sold separately from airframes, the CTC distinguishes between the two and allows for an interest in an aircraft engine to be unaffected by its removal from or installation on an airframe. International Interests An international interest is created pursuant to a valid Transaction Agreement in respect of a uniquely identifiable Aircraft Object. An international interest created by the CTC is distinct from a security interest created by the Personal Property Security Act. In addition to the creation of international interests, the CTC contemplates and governs the assignment, acquisition and subordination of international interests, non-consensual rights and contracts of sale.

9 7 Convention Default and Remedies Subject to any declaration made by a country that has ratified the CTC and any agreement as between a creditor and a debtor, the CTC provides a creditor with a set of extra-judicial remedies exercisable upon default by a debtor, allowing the creditor to: take possession or control of the Aircraft Object; sell or lease the Aircraft Object; collect or receive income or profits arising from the management or use of an Aircraft Object; take ownership of the Aircraft Object in satisfaction of the secured obligations but only after default has occurred; and deregister the Aircraft Object and procure its export and physical transfer pursuant to an Irrevocable Deregistration and Export Request Authorization ( IDERA ). Where a default remedy is disputed by the debtor, the CTC provides the creditor with speedy court remedies that may be exercised in advance of final determination of the merits of its claim. A creditor may obtain speedy relief by seeking a court order for one or more of the following: i) preservation of the Aircraft Object and its value; ii) possession, control, or custody of the Aircraft Object; iii) immobilization of the Aircraft Object; iv) lease or, except where covered by (i) and (iii) above, management of the Aircraft Object and income therefrom; and v) sale and application of proceeds therefrom, provided that the debtor and the creditor have specifically agreed in the Transaction Agreement. The rights and remedies created by the CTC supersede all inconsistent domestic remedies. Any additional remedies permitted by the domestic law of a Contracting State, including any remedies agreed upon by the parties, may be exercised to the extent they are not inconsistent with the CTC. Insolvency The CTC creates a special insolvency, bankruptcy and restructuring regime that governs creditors rights in relation to Aircraft Objects. Within a specified time limit following an insolvency related event (which is 60 days in Canada), the debtor or insolvency administrator must a) give possession of the Aircraft Object to the creditor, or b) cure all defaults and agree to perform all future obligations under the Transaction Agreement. Deregistration and Export of an Aircraft Object Where a Contracting State has made the required declaration, the CTC provides a deregistration and export remedy to creditors pursuant to an IDERA. An IDERA is an authorization granted by a debtor to an aviation authority for the benefit of a creditor. If default occurs, an IDERA authorizes the deregistration of the Aircraft Object from the aircraft registry maintained by the aviation authority and its export and physical transfer from the country where the aircraft registry is maintained. An IDERA imposes a duty on an aviation authority to enforce the IDERA expeditiously (which is 5 days in Canada) and without a court order. International Registry System The web-based, electronic international registry system or IRS is a key feature of the CTC. A creditor can register its international interest in an Aircraft Object at the IRS (or any amendment, assignment or subordination related thereto) and the debtor must consent to such registration. Registration on the IRS gives public notice of an international interest and enables a creditor to preserve its priority and the effectiveness of an international interest in insolvency proceedings against the debtor. The IRS is an asset based registry, so registrations and/or searches can only be done on Aircraft Objects, whether by manufacturer, model or serial number and not by creditor or debtor. Both the creditor and the debtor must register with, and be approved by, the IRS prior to being able to complete any registration with respect to an Aircraft Object.

10 8 BANKING From Unsecured to Secured: THE DANGERS OF ALL OBLIGATIONS

11 9 CLAUSES IN SECURITY AGREEMENTS By Matt Grant, Student-at-Law Introduction Revolving credit facilities, or operating lines of credit, are provided to debtors so that they can immediately pay employees, landlords and other creditors. The debt to the operating lender is repaid later, when the borrower has generated sufficient revenue from the business. Operating lenders usually secure their lines of credit by taking a security interest in the borrower s assets. The security agreements used in these arrangements typically contain future advance clauses, which ensure that the security interest also secures any later loans made by the secured lender. However, many security agreements are not limited in their application to future loan advances made by the secured lender. 1 All Obligations clauses are often included to capture all present or future obligations, indebtedness and liability of the debtor to the secured party, which may include the lender s successor or assignee. All Obligations Clauses Problematic Issues Broadly-worded All Obligations clauses can create two related and problematic circumstances. First, armed with an All Obligations clause, a secured party may buy unsecured claims and later argue that these assigned unsecured claims have been converted into secured claims. Second, an unsecured creditor may buy a secured claim and argue its pre-existing unsecured claim has been transformed into a secured claim by virtue of the assigned All Obligations clause and its associated rights. This second scenario describes, in broad strokes, the general facts of CPC Networks Corp. v. Eagle Eye Investments Inc. ( Eagle Eye ). 2 The Facts of Eagle Eye Investments Eagle Eye was a case involving ever-worsening relations between the founders of a company called CPC Networks Corp ( CPCN ). In 2008, CPCN entered into a loan agreement and general security agreement with Business Development Bank of Canada ( BDC ). CPCN was also indebted to some of its founders, including a sizeable unsecured loan from a company called Eagle Eye Investments Inc. ( EEII ) a corporation wholly owned by one of CPCN s founders. Relations between the founders subsequently deteriorated, to the point that EEII commenced an action against CPCN claiming the amount due under its unsecured loans. As an unsecured creditor, EEII s options were limited. Eventually, through a series of assignments, it bought BDC s secured claim and attempted to argue that its prior debt was also now secured, relying, as assignee, on the All Obligations clause found in BDC s loan agreements. Court of Queen s Bench Decision The Saskatchewan Court of Queen s Bench (the Court ) in Eagle Eye 3 saw nothing but trouble in EEII s attempt to transform its unsecured claim into a secured claim. The Court interpreted BDC s loan agreement as clearly demonstrating an intent that the applicable security was in respect to BDC s loan and not to the loans of third parties, like EEII. The Court could have stopped there. Instead, it went further and suggested that there were three good policy reasons to flatly refuse to convert an unsecured claim into a secured claim in assignment of security situations: first, it would be unfair to the debtor; second, it would have a destructive impact on the principle of pro rata sharing under bankruptcy law; and, third, it would have a disruptive effect on the priority regime under the Personal Property Security Act. The Court s preference to shut the door on any attempt to transform an unsecured claim into a secured claim via an All Obligations clause was clear. However, the matter was appealed. The Court of Appeal Decision The Saskatchewan Court of Appeal (the Court of Appeal ) agreed with the Court s result, but focused on interpreting the loan agreements and the All Obligations Clause, specifically. The Court of Appeal left open the possibility that parties could draft an All Obligations clause that secures the past unsecured debts of others. 3 The Court of Appeal also remarked that concerns about disruptions to the bankruptcy or secured transactions priority regimes simply confirm the need to restrictively interpret security agreements as a specialized form of contract. The focus remains, however, on the contracts. Unfortunately for EEII, the agreements it was assigned did not demonstrate an intention to secure its prior unsecured debts. Looking at the factual matrix surrounding the signing of BDC s loan agreements, the Court of Appeal found the bargain did not depend upon permitting the assignment of the security agreement, including its All Obligations clause, to a third party. Further, while the general security agreement at issue permitted assignment without notice, it did not expressly state that, upon assignment, the general security agreement would act to secure any and all unsecured debts previously owed to the assignee. The Court of Appeal commented that, practically speaking, while financial institutions are certainly concerned about the debts owed to them, it would be a stretch to assume, without clear words to contrary, that a financial institution and a borrower intended that an All Obligations clause secures, upon assignment, the borrower s unsecured debts to the assignee. Such an intention could be evidenced by the words of an appropriately drafted All Obligations clause, but that intention was lacking here. Summary For unsecured creditors (in Saskatchewan, at the very least) hoping to transform their claim into a more valuable secured claim, or for secured creditors hoping to buy-up unsecured claims and convert them to secured claims, everything turns on the intent of the parties as expressed in the All Obligations clause. Footnotes 1 Roderick J. Wood, Turning Lead into Gold: The Uncertain Alchemy of All Obligations Clauses, (2004) 41 Alta. L. Rev at para SKCA SKQB Supra, Note 2 at para 40

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