UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 or
15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of March, 2015.
Commission File Number 001-32399
BANRO CORPORATION
(Translation of registrants name into English)
1 First Canadian Place
100 King Street West,
Suite 7070
Toronto, Ontario, Canada
M5X
1E3
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will
file annual reports under cover Form 20-F or Form 40-F
Form 20-F[
] Form 40-F[X]
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(1):[ ]
Note: Regulation S-T Rule 101(b)(1) only permits the
submission in paper of a Form 6-K if submitted solely to provide an attached
annual report to security holders.
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(7):[ ]
Note: Regulation S-T Rule 101(b)(7) only permits the
submission in paper of a Form 6-K if submitted to furnish a report or other
document that the registrant foreign private issuer must furnish and make public
under the laws of the jurisdiction in which the registrant is incorporated,
domiciled or legally organized (the registrants home country), or under the
rules of the home country exchange on which the registrants securities are
traded, as long as the report or other document is not a press release, is not
required to be and has not been distributed to the registrants security
holders, and, if discussing a material event, has already been the subject of a
Form 6-K submission or other Commission filing on EDGAR.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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BANRO CORPORATION |
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/s/
Kevin Jennings |
Date: March 12, 2015 |
Kevin Jennings |
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Chief Financial Officer |
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INDEX TO EXHIBITS
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Consent Form
BANRO CORPORATION
Solicitation of Consents to Amend the Indenture and Collateral Trust
Agreement Relating to the
10% Senior Secured Notes due 2017 (the
Notes)
CUSIP No. 066800AA1 and 066800AC7
ISIN No.
CA066800AA11 and CA066800AC76
Pursuant to the Consent Solicitation Statement
Dated March 6, 2015
The Solicitation (as defined below) will expire, and
the deadline for Consents (as defined below) will be, at 5:00 p.m.
(Toronto time) on March 26, 2015, unless extended (such time and date, as
they may be extended, the Expiration Time). The Consents are
being solicited in connection with proposed amendments to the
Indenture (as defined below) and related amendments to the
Collateral Trust Agreement (as defined below), as described in
greater detail below. Holders and Subsequent Holders (both as
defined below) who desire to receive the Consent Fee (as defined
below) must deliver a Consent to the Proposed Amendments (as
defined below) pursuant to the Solicitation at or prior to the
Expiration Time. |
The Tabulation Agent and Payment Agent for the Solicitation
is:
Equity Financial Trust Company
By Overnight Delivery or Regular |
By Email: |
By Facsimile: |
Mail or Registered or Certified Mail: |
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tmxecorporateActions@tmx.com |
(416) 361-0470 |
200 University Ave., Suite 300 |
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Toronto, ON M5H 4H1 |
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Canada |
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Attn: Corporate Actions |
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Delivery of this Consent Form to an address, or transmission
via email to an email address, or transmission via facsimile to a number, other
than as set forth above, will not constitute valid delivery. Delivery of Consent
Forms should be made sufficiently in advance of the Expiration Time to assure
that the Consent Form is received at or prior to the Expiration Time (and, in
the case of facsimile or email transmission, that the original Consent Form is
received by the Tabulation Agent and Payment Agent prior to 5:00 p.m. (Toronto
time) on the fourth business day following the Expiration Time).
ALL PROPERLY COMPLETED, EXECUTED AND DATED CONSENTS MUST BE
RECEIVED BY THE TABULATION AGENT AND PAYMENT AGENT AT OR PRIOR TO THE EXPIRATION
TIME. BENEFICIAL OR NON-REGISTERED HOLDERS (AS DEFINED BELOW) SHOULD PROMPTLY
CONTACT THEIR INTERMEDIARIES (AS DEFINED BELOW) AND OBTAIN AND FOLLOW THEIR
INTERMEDIARIES INSTRUCTIONS WITH RESPECT TO THE APPLICABLE CONSENT PROCEDURES
AND DEADLINES, WHICH MAY BE EARLIER THAN THE DEADLINES THAT ARE SET OUT IN THIS
CONSENT FORM AND THE SOLICITATION STATEMENT REFERRED TO BELOW.
HOLDERS WHO DO NOT DELIVER A PROPERLY COMPLETED AND EXECUTED
CONSENT AT OR PRIOR TO THE EXPIRATION DATE WILL BE BOUND BY THE TERMS OF THE
PROPOSED AMENDMENTS IF THE CONDITIONS TO THE PROPOSED AMENDMENTS AS SET OUT IN
THE SOLICITATION STATEMENT ARE SATISFIED OR WAIVED, AS APPLICABLE.
This Consent Form is delivered in connection with the Consent
Solicitation Statement, dated March 6, 2015 (as the same may be amended,
supplemented or modified from time to time, the Solicitation
Statement) of Banro Corporation (the Company or
we or us), and this Consent Form and
instructions hereto (the Consent Form), which together with
the Solicitation Statement constitute the Companys solicitation (the
Solicitation) of the consent (the Consent)
of Holders to certain proposed amendments to the Indenture dated as of March 2,
2012, as supplemented by a supplemental indenture dated as of April 23, 2013 (the Indenture),
by and among the Company, its subsidiary guarantors (the
Guarantors) and Equity Financial Trust Company, as trustee
(the Trustee), pursuant to which the Notes were issued, and
certain proposed related amendments to the Collateral Trust Agreement dated
March 2, 2012 (the Collateral Trust
Agreement), among the Company the initial guarantors named on
the signature pages thereto and the Trustee, among others (collectively, the
Proposed Amendments), all as detailed in the Solicitation
Statement under Proposed Amendments.
All capitalized terms used herein but not defined herein shall
have the meanings ascribed to them in the Solicitation Statement.
In order to consent, each Holder must complete and sign
this Consent Form (or a facsimile hereof), and mail, email or deliver this
Consent Form (or such facsimile) in accordance with the procedures set forth in
this Consent Form and the Solicitation Statement. THIS CONSENT MUST NOT BE USED
BY BENEFICIAL OR NON-REGISTERED HOLDERS. BENEFICIAL OR NON-REGISTERED HOLDERS
(AS DEFINED BELOW) MUST OBTAIN AND FOLLOW THEIR INTERMEDIARIES (AS DEFINED
BELOW) INSTRUCTIONS WITH RESPECT TO THE APPLICABLE CONSENT PROCEDURES.
The instructions accompanying this Consent Form should be read
carefully before this Consent Form is completed. Any questions regarding the
terms of the Solicitation and requests for assistance relating to the procedure
for delivering Consents to the Proposed Amendments may be directed to the
Solicitation Agent at the address and telephone number on the back page of this
Consent Form. Additional copies of this Solicitation Statement or the Consent
Form may be obtained on the Companys profile on the System for Electronic
Document Analysis and Retrieval and on the SECs Electronic Data Gathering and
Retrieval system, which can be accessed at www.sedar.com
and www.sec.gov, respectively.
Beneficial or Non-Registered Holders should contact their Intermediary (as
defined below) for assistance regarding the Solicitation. We have distributed
copies of the Solicitation Statement to Intermediaries who are required to
forward these materials to Beneficial or Non-Registered Holders. If you are a
Beneficial or Non-Registered Holder, you will be provided with materials from
your Intermediary which must be completed and signed by you in accordance with
the directions and instructions contained in such materials.
By executing this Consent Form, the undersigned acknowledges
receipt of the Solicitation Statement. The terms of the Solicitation set forth
in the Solicitation Statement are incorporated herein by reference and form part
of the terms and conditions of this Consent Form.
As soon as practicable following the Expiration Time, provided
the Requisite Consents have been received and the General Conditions have been
satisfied or waived, the Company and the Trustee will execute the Amending
Agreements. The Amending Agreements will become effective upon execution by the
Company, the Guarantors, the Trustee and certain other secured debt
representatives under the Collateral Trust Agreement, as applicable, whereupon
all Holders, including non-consenting Holders, and all subsequent holders will
be bound by the Proposed Amendments. Failure to complete and return a Consent
will have the effect of not consenting to the Proposed Amendments.
The Company will, as promptly as practicable after the Proposed
Amendments become effective, or, if the Company determines not to proceed with
the Proposed Amendments in accordance with the Solicitation, as promptly as
practicable after such determination, pay each Holder or subsequent registered
holder who has provided evidence of transfer that is acceptable to the
Tabulation Agent and Payment Agent or Trustee (a Subsequent
Holder), if applicable, a consent fee of US$2.50 for each US$1,000
principal amount of Notes in respect of which such Holder or Subsequent Holder
has delivered a valid Consent to the Tabulation Agent and Payment Agent prior to
the Expiration Time and which has been accepted by us and not revoked (the
Consent Fee).
Notwithstanding anything to the contrary herein, in the case of
any Notes that are registered in the name of a clearing agency of which an
intermediary is a participant, we may satisfy our obligation set out in the
Solicitation Statement to pay to the Holder or Subsequent Holder thereof a
Consent Fee by paying such Consent Fee directly to the relevant intermediary,
for the benefit of the beneficial owners of such Notes.
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CONSENT TO PROPOSED AMENDMENTS
The undersigned agrees and acknowledges that, by the execution
and delivery hereof, the undersigned hereby (i) consents to the Proposed
Amendments as described in the Solicitation Statement, and (ii) authorizes the
Trustee and the Company to execute the Amending Agreement, as described in the
Solicitation Statement, and to do all other things reasonably required to give
effect to this Consent and the Proposed Amendments.
The undersigned acknowledges that it must comply with the other
provisions of this Consent, and complete the other information required herein,
to validly consent to the Proposed Amendments.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to give the consent contained herein.
The undersigned shall, upon request, execute and deliver any additional
documents deemed by us to be necessary or desirable to perfect the undersigneds
consent or evidence such power and authority.
The undersigned hereby agrees that this Consent will continue
once delivered, unless validly revoked, even if the Solicitation shall be
extended beyond the initial Expiration Time. The undersigned understands that
Consents delivered pursuant to any of the procedures described under Procedures
for Delivering Consents in the Solicitation Statement will constitute a binding
agreement between the undersigned and us upon the terms and subject to the
conditions of the Solicitation.
All authority conferred or agreed to be conferred by this
Consent will survive the death, incapacity, dissolution or liquidation of the
undersigned and every consent, agreement and obligation of the undersigned under
this Consent will be binding upon the undersigneds heirs, personal
representatives, successors and assigns.
The record date for purposes of this Solicitation is 5:00 p.m.
(Toronto time) on February 26, 2015 (the Record Date).
However, we reserve the right to establish from time to time any new date as the
Record Date with respect to the Notes for purposes of the Solicitation and,
thereupon, any such new date will be deemed to be the Record Date for purposes
of such Solicitation. Only Holders and Subsequent Holders will be entitled to
consent to the Proposed Amendments.
You may be a beneficial owner of Notes (a Beneficial
or Non-Registered Holder) if your Notes are registered either:
(1) |
in the name of an intermediary (an
Intermediary) with whom you deal in respect of the
Notes, such as, among others, banks, trust companies, securities dealers
or brokers and trustees or administrators of self-administered RRSPs,
RRIFs, RESPs and similar plans; or |
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(2) |
in the name of a clearing agency (such as CDS (as defined
below)) of which the Intermediary is a
participant. |
Any Beneficial or Non-Registered Holder who wishes to deliver a
Consent should not execute this Consent Form. Instead, he, she or it must
instruct the relevant Intermediary to execute an appropriate consent form on
his, her or its behalf.
Only Holders and Subsequent Holders are eligible to consent to
the Proposed Amendments. As used herein, the term Holder
means each person shown on the records of the registrar for the Notes as a
holder of the Notes at the Record Date. As at the date hereof, a nominee of CDS
Clearing and Depositary Services Inc. (CDS), as the sole
registered holder of the Notes, is the sole Holder for purposes of the
Solicitation.
Beneficial or Non-Registered Holders should promptly
contact their Intermediaries and obtain and follow their Intermediaries
instructions with respect to the applicable consent procedures and deadlines, which may be earlier than the deadlines that are
set out in this Consent Form and the Solicitation Statement.
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If a person purchases Notes after the Record Date and the
Holder of such Notes as of the Record Date previously consented (or thereafter
consents) to the Proposed Amendments, such Consent of the Holder as of the
Record Date, and not the subsequent holder, will be eligible for acceptance by
the Tabulation Agent and Payment Agent if it was (or is) validly submitted.
However, if a person purchases Notes after the Record Date, the purchaser may
revoke the previous Consent, if applicable, and submit a new Consent, to the
extent it is a Subsequent Holder, or obtain an appropriate Consent from the
Holder as of the Record Date and submit such Consent on or prior to the
Expiration Time.
If this Consent relates to fewer than all the Notes held of
record as of the Record Date by the undersigned, the undersigned must indicate
in the table below the name(s) and address(es) and aggregate dollar amount (in
integral multiples of US$1,000) of such Notes to which this Consent relates.
Otherwise, this Consent will be deemed to relate to all Notes held of record as
of the Record Date by the Holder. The Holder will receive the Consent Fee for
only that portion of such Notes to which this Consent relates, to the extent
that the Holders Consent has been accepted by the Company and not revoked.
Consent Fee
The Consent Fee is US$2.50 for each US$1,000 principal amount
of Notes in respect of which a valid Consent is received by the Tabulation Agent
and Payment Agent prior to the Expiration Time and which has been accepted by
the Company and not revoked.
Notwithstanding anything to the contrary herein, in the case of
any Notes that are registered in the name of a clearing agency of which an
intermediary is a participant, the Company may satisfy its obligation set out in
the Solicitation Statement to pay to the Holder or Subsequent Holder thereof a
Consent Fee by paying such Consent Fee directly to the relevant intermediary,
for the benefit of the beneficial owners of such Notes. All amounts payable
under the Solicitation will be paid in United States dollars. Pursuant to
applicable laws, the relevant intermediary may, in certain circumstances, be
required to make withholdings from the amount otherwise payable to a Holder or
Subsequent Holder. No interest will be paid on the Consent Fee.
The undersigned requests that payment of the applicable Consent
Fee be to the undersigned by wire transfer to the account specified below.
4
PLEASE COMPLETE THE FOLLOWING TABLES ON THIS AND THE NEXT
PAGE
DESCRIPTION OF NOTES TO WHICH CONSENT IS
GIVEN NAME(S) AND ADDRESS(ES) OF HOLDER(S) (Please
fill in, if blank, exactly as name(s) appear(s) on Note(s))
OR CDS PARTICIPANTS(S) |
NOTES WITH RESPECT
TO WHICH THIS CONSENT IS GIVEN (ATTACH ADDITIONAL SCHEDULE, IF
NECESSARY)
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CDS CUID
NUMBER |
PRINCIPAL AMOUNT OF NOTES IN
RESPECT OF WHICH CONSENT IS GIVEN
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CUSIP NO. |
066800AA1 |
066800AC7 |
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TOTAL: |
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IMPORTANT READ CAREFULLY |
THIS CONSENT MUST BE EXECUTED BY THE HOLDER(S) IN EXACTLY
THE SAME MANNER AS THE NAME(S) OF SUCH HOLDER(S) APPEAR(S) ON
THE NOTES. IF NOTES TO WHICH THIS CONSENT RELATES ARE HELD BY
TWO OR MORE JOINT HOLDERS, ALL SUCH HOLDERS MUST SIGN THIS CONSENT. IF
SIGNATURE IS BY A TRUSTEE, EXECUTOR, ADMINISTRATOR, GUARDIAN,
ATTORNEY-IN-FACT, OFFICER OF A CORPORATION OR OTHER PERSON
ACTING IN A FIDUCIARYRESENTATIVE CAPACITY, SUCH PERSON SHOULD
SO INDICATE WHEN SIGNING AND MUST SUBMIT PROPER EVIDENCE
SATISFACTORY TO THE COMPANY OF SUCH PERSONS AUTHORITY SO TO
ACT. |
USD WIRE TRANSFER ACCOUNT DETAILS |
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BENEFICIARY NAME:
___________________________________________________________________________________ |
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BENEFICIARY STREET ADDRESS (P.O. box addresses
cannot be used):
____________________________________________ |
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_____________________________________________________________________________________________________ |
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BENEFICIARY BANK:
___________________________________________________________________________________ |
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BENEFICIARY BANK ADDRESS:
__________________________________________________________________________ |
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_____________________________________________________________________________________________________ |
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BENEFICIARY ACCOUNT NO.:
____________________________________________________________________________ |
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BENEFICIARY BANK SWIFT CODE/ABA NUMBER:
____________________________________________________________ |
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INTERMEDIARY BANK SWIFT CODE (if
applicable):
___________________________________________________________ |
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INTERMEDIARY BANK ADDRESS:
__________________________________________________________________________ |
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ADDITIONAL INFORMATION
(reference/invoice):
______________________________________________________________ |
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CONSENTS BY THE UNDERSIGNED HOLDER/CDS PARTICIPANT
AS OF THE DATE REFERENCED BELOW |
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SIGNATURE:
_________________________________________________________________________________________ |
(HOLDER OR CDS PARTICIPANT WITH MEDALLION GUARANTEE STAMP)
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DATED:
______________________________________________________________________________________________ |
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NAME:
_______________________________________________________________________________________________ |
(PLEASE PRINT) |
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CAPACITY:
___________________________________________________________________________________________ |
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ADDRESS:
____________________________________________________________________________________________ |
(INCLUDING POSTAL CODE) |
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AREA CODE AND TELEPHONE NO.:
(
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The signature(s) on this form must be guaranteed by the
following method:
A Medallion Signature Guarantee obtained from a member of an
acceptable Medallion Signature Guarantee Program (STAMP, SEMP, MSP). Many
commercial banks, saving banks, credit unions and all broker dealers participate
in a Medallion Signature Guarantee Program. The Guarantor must affix a stamp
bearing the actual words “Medallion Guaranteed”.
PLACE MEDALLION GUARANTEE STAMP HERE:
U.S. STATUS |
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All Holders must place an X in the applicable box below.
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[ ] The Holder
is not a U.S. Person, a person in the United States, or a person acting
for the account or benefit of a U.S.
person or
a person in the United States. |
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[ ] The Holder is a
U.S. Person, a person in the United States, or a person acting for the
account or benefit of a U.S. Person
or a
person in the United States. |
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For the definition of U.S. Person see instructions
below. If you are a U.S. Person or are acting on behalf of a U.S. Person,
then in order to avoid backup withholding you must complete the Form W-9
included below or otherwise provide certification that you are exempt from
backup withholding, as provided in the instructions. If you require a Form
W-8, such Form may be obtained at www.irs.gov.
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CERTIFICATION OF AWAITING TAXPAYER IDENTIFICATION NUMBER
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NOTE: FAILURE TO FURNISH YOUR CORRECT TIN MAY RESULT IN A
PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE AND IN BACKUP
WITHHOLDING OF 28% OF THE GROSS AMOUNT OF CONSIDERATION PAID TO YOU
PURSUANT TO THE ARRANGEMENT. |
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YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE
"APPLIED FOR" IN PART I OF THE ATTACHED FORM W-9. |
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I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (a) I have
mailed or delivered an application to receive a taxpayer identification
number to the appropriate IRS Center or Social Security Administration
Officer, or (b) I intend to mail or deliver an application in the near
future. I understand that if I do not provide a TIN by the time of
payment, 28% of the gross cash proceeds of such payment made to me may be
withheld. |
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Signature of U.S. Person:
__________________________________________
Date: _______________________ |
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U.S. Persons and Form W-9
U.S. federal income tax law generally requires that each Holder
that is a U.S. Person as defined below (a U.S. Holder) and
that is receiving the Consent Fee must provide the Company (as payor) with such
U.S. Holders correct TIN, or otherwise establish an exemption from backup
withholding. If we are not provided with the correct TIN or an adequate basis
for an exemption, such U.S. Holder may be subject to a penalty imposed by the
Internal Revenue Service (the IRS) and backup withholding in an amount equal
to 28% of the amount of any reportable payments pursuant to the Solicitation and
payment of the Consent Fee. If withholding results in an overpayment of taxes, a
refund may be obtained, provided that the required information is timely
furnished to the IRS.
For purposes of this Consent Form, a U.S.
Person is a Holder of the Notes that, for U.S. federal income tax
purposes, is (a) an individual who is a citizen or resident of the U.S., (b) a
corporation, partnership, or other entity classified as a corporation or
partnership for U.S. federal income tax purposes, that is created or organized
in or under the laws of the United States, or any political subdivision thereof
or therein, (c) an estate if the income of such estate is subject to U.S.
federal income tax regardless of the source of such income, or (d) a trust if
(i) such trust has validly elected to be treated as a U.S. person for U.S.
federal income tax purposes, or (ii) a U.S. court is able to exercise primary
supervision over the administration of such trust and one or more U.S. persons
have the authority to control all substantial decisions of such trust.
To prevent backup withholding, each consenting U.S. Holder must
provide its correct TIN by completing the Form W-9 set forth herein, certifying
that the TIN provided is correct (or that such U.S. Holder applied for a TIN)
and that (a) the U.S. Holder is exempt from backup withholding, (b) the U.S.
Holder has not been notified by the IRS that such U.S. Holder is subject to
backup withholding as a result of a failure to report all interest or dividends,
or (c) the IRS has notified the U.S. Holder that such U.S. Holder is no longer
subject to backup withholding. Each U.S. Holder must also certify that such U.S.
Holder is a U.S. person.
In general, if a U.S. Holder is an individual, the TIN is the
individuals Social Security number. If a U.S. Holder does not have a TIN, such
U.S. Holder should apply for a TIN and write Applied For in the space for the
TIN in Part I of the Form W-9 attached herein, and sign and date the Form W-9
and complete and sign the Certification of Awaiting Taxpayer Identification
Number above. If the U.S. Holder does not provide such U.S. Holders TIN to us
by the date any reportable payments are due, the payments will be subject to
backup withholding at a rate of 28%. Note: Writing Applied For on the form
means that the U.S. Holder has already applied for a TIN or that such Holder
intends to apply for one in the near future.
Any questions regarding the terms of the Solicitation may be
directed to the Solicitation Agent.
11
Any questions regarding the terms of the Solicitation may be
directed to the Solicitation Agent.
The Solicitation Agent for the Solicitation is:
CIBC World Markets Inc.
161 Bay Street, 6th Floor
Toronto, Ontario M5J 2S8
Canada
Attn: Sean
Dixon
(416) 956-6978 (Call Collect)
Please return completed Consents to the Tabulation Agent and
Payment Agent via facsimile, by hand delivery, regular mail or overnight
courier.
The Tabulation Agent and Payment Agent for the
Solicitation is:
Equity Financial Trust Company
By Overnight Delivery or Regular |
By Email: |
By Facsimile: |
Mail or Registered or Certified |
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Mail: |
tmxecorporateActions@tmx.com |
(416) 361-0470 |
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200 University Ave., Suite 300 |
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Toronto, ON M5H 4H1 |
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Canada |
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Attn: Corporate Actions |
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Consent Solicitation Statement
BANRO CORPORATION
Solicitation of Consents to Amend the Indenture and Collateral Trust
Agreement Relating to the
10% Senior Secured Notes due 2017 (the
Notes)
CUSIP No. 066800AA1 and 066800AC7
ISIN No.
CA066800AA11 and CA066800AC76
March 6, 2015
The Solicitation (as defined below) will expire, and
the deadline for Consents (as defined below) will be, at 5:00 p.m.
(Toronto time) on March 26, 2015, unless extended (such time and date,
as they may be extended, the Expiration Time). The Consents are
being solicited in connection with proposed amendments to the
Indenture (as defined below) and related amendments to the
Collateral Trust Agreement (as defined below), as described in greater
detail below. Holders and Subsequent Holders (both as defined
below) who desire to receive the Consent Fee (as defined below)
must deliver a Consent to the Proposed Amendments (as defined below)
pursuant to the Solicitation at or prior to the Expiration
Time. |
Banro Corporation (the Company or
we or us), hereby solicits (the
Solicitation) consents (the Consents) to
certain proposed amendments to the Indenture dated as of March 2, 2012, as
supplemented by a supplemental indenture dated as of April 23, 2013 (the
Indenture), by and among the Company, its subsidiary
guarantors (the Guarantors) and Equity Financial Trust
Company, as trustee (the Trustee), pursuant to which the
Notes were issued (the Proposed Indenture Amendment), and
certain proposed related amendments to the Collateral Trust Agreement dated
March 2, 2012 (the Collateral Trust Agreement), among the
Company, the initial guarantors named on the signature pages thereto and the
Trustee, among others (the Related Collateral Trust Agreement
Amendment, and together with the Proposed Indenture Amendment,
collectively, the Proposed Amendments), subject to the
conditions set forth in this Consent Solicitation Statement (this
Solicitation Statement) and in the accompanying Consent Form
(the Consent Form), all as described below under Proposed
Amendments.
The consent fee is US$2.50 for each US$1,000 principal amount
of Notes in respect of which a valid Consent is received by the Tabulation Agent
and Payment Agent prior to the Expiration Time and which has been accepted by
the Company and not revoked (the Consent Fee). Adoption of
the Proposed Indenture Amendment requires the Consents of the holders of Notes
(Holders) of a majority of the then aggregate outstanding
principal amount of the Notes (the Requisite Consents).
Pursuant to the Support Agreements the Supporting Noteholders (both as defined
below) have agreed to, in respect of the Notes beneficially owned, or over which
control or direction is exercised, directly or indirectly, by them, consent to
the Proposed Amendments. The Supporting Noteholders collectively beneficially
own, or exercise control or direction over, directly or indirectly, an aggregate
principal amount of Notes representing a majority of the currently issued and
outstanding Notes. As of the date of this Solicitation Statement, US$175,000,000
aggregate principal amount of Notes are outstanding. See Proposed Amendments
for a description of the Proposed Amendments. The Company will, as promptly as
practicable after the Proposed Amendments become effective, or, if the Company
determines not to proceed with the Proposed Amendments in accordance with the
Solicitation, as promptly as practicable after such determination, pay such
Consent Fee in respect of Consents validly delivered and accepted pursuant to
the Solicitation and not revoked.
The Solicitation Agent for the Solicitation is:
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The Tabulation Agent and Payment Agent for
the |
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Solicitation is: |
CIBC World Markets Inc. |
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Equity Financial Trust
Company |
A Consent delivered by a Holder may be revoked by such Holder
(or a subsequent registered holder who has provided evidence of transfer that is
acceptable to the Tabulation Agent and Payment Agent or Trustee (a Subsequent Holder)) by written
notice to the Tabulation Agent and Payment Agent or the Trustee before the
Amending Agreements (as defined below) become effective.
As soon as practicable following the Expiration Time, provided
the Requisite Consents have been received and the General Conditions (as defined
below) have been satisfied or waived, the Company and the Trustee will execute
an amendment to each of the Indenture and the Collateral Trust Agreement
(together, the Amending Agreements) containing the Proposed
Amendments. The Company, in its sole discretion, may waive any of the General
Conditions in whole or in part, at any time or from time to time, prior to the
Expiration Time. See Conditions to the Solicitation. The
Amending Agreements will become effective upon execution by the Company, the
Guarantors, the Trustee and certain other secured debt representatives under the
Collateral Trust Agreement, as applicable. If the Solicitation is terminated or
withdrawn for any reason, the Proposed Amendments will not become effective, and
the Indenture and the Collateral Trust Agreement shall continue in full force
and effect, unamended by the Proposed Amendments.
If the Requisite Consents are received and accepted and the
Proposed Amendments become effective, the Proposed Amendments will be binding on
all holders of the Notes regardless of whether or not a Holder delivered a
Consent.
IMPORTANT INFORMATION
This Solicitation Statement has not been filed with or reviewed
by any Canadian provincial or territorial securities commission or similar
regulatory authority of any other jurisdiction, nor has any such commission or
authority passed upon the accuracy or adequacy of this Solicitation Statement.
Any representation to the contrary is unlawful and may be a criminal offense.
NONE OF THE COMPANY, THE SOLICITATION AGENT OR THE TABULATION
AGENT AND PAYMENT AGENT MAKES ANY RECOMMENDATION AS TO WHETHER OR NOT HOLDERS
SHOULD DELIVER CONSENTS IN RESPONSE TO THE SOLICITATION. EACH HOLDER MUST MAKE
HIS, HER OR ITS OWN DECISION AS TO WHETHER TO DELIVER A CONSENT AND SHOULD
CONSULT HIS, HER OR ITS FINANCIAL ADVISORS IN CONNECTION WITH SUCH DECISION.
Only Holders and Subsequent Holders who have validly delivered
a Consent at or prior to the Expiration Time that has been accepted by the
Company and not revoked will be eligible to receive the Consent Fee, which the
Company will pay as promptly as practicable after the Proposed Amendments become
effective, or, if the Company determines not to proceed with the Proposed
Amendments in accordance with the Solicitation, as promptly as practicable after
such determination. All other Holders will not be eligible to receive any
Consent Fee, but will be bound by the Proposed Amendments if they become
effective.
Only Holders and Subsequent Holders are eligible to Consent to
the Proposed Amendments. As used herein, the term Holder
means each person shown on the records of the registrar for the Notes as a
holder of the Notes at 5:00 p.m. (Toronto time) on February 26, 2015 (the
Record Date). As at the date hereof, a nominee of CDS
Clearing and Depository Services Inc. (CDS), as the sole
registered holder of the Notes, is the sole Holder for purposes of this
solicitation of Consents. BENEFICIAL OR NON-REGISTERED HOLDERS (AS
DEFINED BELOW) SHOULD PROMPTLY CONTACT THEIR INTERMEDIARIES (AS DEFINED BELOW)
AND OBTAIN AND FOLLOW THEIR INTERMEDIARIES INSTRUCTIONS WITH RESPECT TO THE
APPLICABLE CONSENT PROCEDURES AND DEADLINES, WHICH MAY BE EARLIER THAN THE
DEADLINES THAT ARE SET OUT IN THIS SOLICITATION STATEMENT AND THE CONSENT FORM.
SEE PROCEDURES FOR DELIVERING CONSENTS.
Holders who wish to Consent must deliver their properly
completed and executed Consent Form to the Tabulation Agent and Payment Agent at
the address set forth on the back cover page of this Solicitation Statement and
in the Consent Form in accordance with the instructions set forth herein and
therein. Consents should not be delivered to the Company or the Solicitation
Agent. However, the Company reserves the right to accept any Consent received by the
Company or the Solicitation Agent. Under no circumstances should any person
deliver Notes to the Company, the Trustee, the Solicitation Agent or the
Tabulation Agent and Payment Agent. Beneficial or Non-Registered Holders should
not deliver the Consent Form but must follow the Consent procedures of their
Intermediary (as defined below). See Procedures for Delivering Consents
Consent Procedures for Holders Whose Notes Are Not Held in Their Name.
ii
Any questions regarding the terms of the Solicitation and
requests for assistance relating to the procedure for delivering Consents to the
Proposed Amendments may be directed to the Solicitation Agent at the address and
telephone number on the back cover of this Solicitation Statement. Additional
copies of this Solicitation Statement or the Consent Form may be obtained on the
Company³s profile on the System for Electronic Document Analysis and Retrieval
(SEDAR) and on the SEC³s Electronic Data Gathering and
Retrieval system (EDGAR), which can be accessed at
www.sedar.com and www.sec.gov, respectively. Beneficial or Non-Registered
Holders may also contact their Intermediary for assistance regarding the
Solicitation.
This Solicitation Statement and the Consent Form
contain important information which should be read before any decision is made
with respect to the Solicitation.
This Solicitation Statement does not constitute a
solicitation of Consents in any jurisdiction in which, or from any person from
whom, it is unlawful to make such solicitation under applicable securities laws.
The delivery of this Solicitation Statement shall not
under any circumstances create any implication that the information contained
herein or attached hereto is correct as of any time subsequent to the date
hereof or that there has been no change in the information set forth herein or
in any attachments hereto or in the affairs of the Company or any of its
affiliates since the date hereof.
No dealer, salesperson or other person has been
authorized to give any information or to make any representation not contained
in this Solicitation Statement or the Consent Form and, if given or made, such
information or representation may not be relied upon as having been authorized
by the Company, the Solicitation Agent or the Tabulation Agent and Payment
Agent.
NOTICE TO UNITED STATES HOLDERS
NEITHER THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION NOR THE SECURITIES REGULATORY AUTHORITIES OF ANY STATE HAVE PASSED ON
THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
This Solicitation is not subject to the registration
requirements of the United States Securities Act of 1933, as amended (the
U.S. Securities Act) or the requirements of the United States
Securities Exchange Act of 1934, as amended (the U.S. Exchange
Act) applicable to tender or exchange offers or proxy solicitations.
Accordingly, this Solicitation is being effected in accordance with Canadian
corporate and securities laws. The information herein has been prepared in
accordance with the disclosure requirements applicable in Canada. Holders in the
United States should be aware that such requirements are different from those of
the United States under the Securities Act or the U.S. Exchange Act.
See Certain United States Federal Income Tax Consequences and
Certain Canadian Federal Income Tax Considerations for certain information
concerning tax consequences to Holders who are United States taxpayers.
iii
Table of Contents
WHERE HOLDERS CAN FIND MORE INFORMATION
The Company files annual and quarterly financial information
and material change reports and other material with the securities commission or
similar regulatory authority in each of the provinces of Canada (other than
Québec) and files such information with, or furnishes such information to, the
Securities and Exchange Commission (the SEC) in the United States. You
may read and download public documents that the Company has filed with the
securities commission or similar regulatory authority in each of the
provinces of Canada (other than Québec) at www.sedar.com. Under a
multi-jurisdictional disclosure system adopted by the United States and Canada,
documents and other information that the Company files with, or furnishes to,
the SEC may be prepared in accordance with the disclosure requirements of
Canada, which are different from those of the United States. You may read and
copy any document that the Company has filed with, or furnished to, the SEC at
the SEC³s public reference room: 100 F Street, N.E., Washington, D.C. 20549. You
should call the SEC at 1-800-SEC-0330 or access its website at www.sec.gov for
further information about the public reference room and copying charges. You
also may read and download the documents the Company has filed with the SEC³s
Electronic Data Gathering and Retrieval system at www.sec.gov.
CURRENCY
All references herein to US$ are references to United States
dollars, the lawful currency of the United States of America.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This Solicitation Statement may contain forward-looking
information that is based on expectations and estimates as of the date of this
Solicitation Statement. The Company³s forward-looking information is information
that is subject to known and unknown risks and other factors that may cause
future actions, conditions or events to differ materially from the anticipated
actions, conditions or events expressed or implied by such forward-looking
information. Forward-looking information is information that does not relate
strictly to historical or current facts, and can be identified by the use of the
future tense or other forward-looking words such as believe, expect,
anticipate, intend, plan, estimate, should, may, could, would,
target, objective, projection, forecast, continue, strategy,
intend, position or the negative of those terms or other variations of them
or comparable terminology. In particular, any statement, express or implied,
regarding future actions, conditions or events or future operating results is
forward-looking information. Forward-looking information is not a guarantee of
performance. All statements, other than statements of historical facts, included
in this Solicitation Statement that address activities, events or developments
that are expected, believed or anticipated to occur or that may occur in the
future are forward-looking information. Examples of such forward-looking
information in this Solicitation Statement include, but are not limited to,
statements with respect to timing of the completion of the Solicitation and the
execution of the Amending Agreements. Such forward-looking information is
subject to the risks, uncertainties and assumptions highlighted in the Company³s
most recent annual and interim management³s discussion and analysis and the
disclosure in the other documents referred to in Where Holders Can Find More
Information.
While the Company anticipates that subsequent events and
developments may cause its views to change, it does not have an intention to
update any forward-looking information, except as required by applicable
securities laws. There can be no assurance that the events or results of the
forward-looking information will occur, or if any of them do, when they will
occur or what impact they will have on the Company³s results of operations or
financial condition, as actual results and future events could differ materially
from those expected or estimated in such information. Accordingly, readers
should not place undue reliance on any forward-looking information. See Risk
Factors in materials filed with the securities regulatory authorities in the
United States and Canada from time to time, including, but not limited to, the
Company³s most recent annual and interim management³s discussion and analysis
and the disclosure in the documents referred to in Where Holders Can Find More
Information for further information with respect to forward-looking information
in those documents.
SUMMARY
The following summary is provided solely for the convenience
of Holders. This summary is not intended to be complete and is qualified in its
entirety by reference to the full text and more specific details contained
elsewhere in this Solicitation Statement, the Consent Form and any amendments or
supplements hereto or thereto. Holders are urged to read the Solicitation
Statement and the Consent Form in their entireties because they contain
important information that should be read carefully before any decision is made
with respect to the Solicitation. Each of the capitalized terms used in this
summary and not defined herein has the meaning set forth elsewhere in this
Solicitation Statement.
The Notes: |
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10% Senior Secured Notes due 2017 (CUSIP Nos. 066800AA1
and 066800AC7; ISIN Nos. CA066800AA11 and CA066800AC76). The Notes are
governed by the Indenture. |
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Purpose of the
Solicitation and Proposed Amendments: |
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The Company has entered into two forward sale agreements
in respect of production at the Twangiza gold mine located in the South
Kivu Province of the Democratic Republic of the Congo (collectively, the
Forward Agreements) and a gold streaming agreement in
respect of the Namoya gold mine located approximately 200 kilometres
southwest of the Twangiza gold mine (the Gold Streaming
Agreement, and together with the Forward Agreements, the
Financing Arrangements). Reference is made to the
Company³s news release dated February 27, 2015 for additional information
in respect of the Financing Arrangements. |
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The purpose of the Solicitation is to obtain the Consent
of Holders to amend certain terms of the Indenture and to make certain
related amendments to the Collateral Trust Agreement in order to, among
other things, secure the gold delivery obligations under the Financing
Arrangements. See Proposed Amendments. |
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The Amending Agreements setting out the Proposed
Amendments are expected to be substantially in the form attached as
Schedule A hereto. |
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Expiration Time: |
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The Solicitation will expire at 5:00 p.m. (Toronto time)
on March 26, 2015, unless extended by the Company in its sole discretion.
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Record Date: |
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The Record Date for the determination of Holders entitled
to give Consents pursuant to the Solicitation is 5:00 p.m. (Toronto time)
on February 26, 2015. |
3
Requisite Consents: |
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Adoption of the Proposed Indenture Amendment requires the
Consents of the Holders of a majority of the then aggregate outstanding
principal amount of the Notes. |
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Pursuant to the Support Agreements the Supporting
Noteholders have agreed to, in respect of the Notes beneficially owned, or
over which control or direction is exercised, directly or indirectly, by
them, consent to the Proposed Amendments. The Supporting Noteholders
collectively beneficially own, or exercise control or direction over,
directly or indirectly, an aggregate principal amount of Notes
representing a majority of the currently issued and outstanding Notes.
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Consent Fee: |
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The Consent Fee is US$2.50 for each US$1,000 principal
amount of Notes in respect of which a valid Consent is received by the
Tabulation Agent and Payment Agent prior to the Expiration Time and which
has been accepted by the Company and not revoked. |
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Conditions to the
Solicitation: |
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The Company may terminate the Solicitation if the
Amending Agreement Condition is not satisfied or the General Conditions
are not satisfied or waived. See Conditions to the Solicitation. The
Company may waive any of the General Conditions, in whole or in part, at
any time prior the Expiration Time. |
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How to Deliver
Consents: |
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See Procedures for Delivering Consents. For further
information or assistance, Beneficial or Non-Registered Holders should
consult their broker, dealer, commercial bank, trust company or other
intermediary (collectively, Intermediaries). |
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Tax Considerations:
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For a discussion of the Canadian federal and United
States federal income tax considerations of the Solicitation applicable to
Holders, see Material Tax Considerations. |
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Solicitation Agent:
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CIBC World Markets Inc. is serving as solicitation agent
(the Solicitation Agent) in connection with the
Solicitation. In such capacity, the Solicitation Agent is available to
answer questions with respect to the terms of the Solicitation. |
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Tabulation Agent and Payment Agent: . |
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Equity Financial Trust Company is serving as tabulation
agent and payment agent (the Tabulation Agent
and Payment Agent) in connection with the Solicitation. Its
contact information appears on the back cover of this Solicitation
Statement. |
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TERMS OF THE SOLICITATION
Upon the terms and subject to the conditions set forth in this
Solicitation Statement and in the accompanying Consent Form (including, if the
Solicitation is extended or amended, the terms and conditions of any such
extension or amendment), the Company is soliciting Consents to the Proposed
Amendments from Holders of the Notes. The Indenture provides that the Company,
the Guarantors and the Trustee may amend or supplement the Indenture with the
consent of the Holders of a majority in principal amount of the Notes
outstanding. Accordingly, in certain circumstances, the Proposed Indenture
Amendment requires the Consents of the Holders of a majority of the outstanding
aggregate principal amount of the Notes. The Company is also soliciting Consents
to the Related Collateral Trust Agreement Amendment, which is related to the
Proposed Indenture Amendment. See Proposed Amendments for a description of the
Proposed Amendments.
Holders who desire to consent to the Proposed Amendments and
receive the Consent Fee are required to validly deliver a Consent to the
Proposed Amendments at or prior to the Expiration Time. A Consent delivered by a
Holder may be revoked by such Holder or a Subsequent Holder by written notice to
the Tabulation Agent and Payment Agent or the Trustee before the date the
Proposed Amendments become effective. Each Holder or Subsequent Holder, by
delivering a Consent, will agree in the Consent Form that its Consent will
continue once delivered, unless validly revoked, even if the Solicitation shall
be extended beyond the initial Expiration Time. Subject to receipt of the
Requisite Consents and the satisfaction or waiver of the General Conditions by
the Expiration Time, the Company will, as soon as practicable following the
Expiration Time, execute the Amending Agreements documenting the Proposed
Amendments. Subject to applicable securities laws and the terms and conditions
set forth in this Solicitation Statement, the Company reserves the absolute
right, in its sole discretion, in accordance with the terms hereof, to waive any
and all General Conditions, to extend or terminate the Solicitation, or to
otherwise amend the Solicitation in any respect. See Conditions to the
Solicitation and Expiration; Extension; Amendment; Termination. The Company
will, as promptly as practicable after the Proposed Amendments become effective,
or, if the Company determines not to proceed with the Proposed Amendments in
accordance with the Solicitation, as promptly as practicable after such
determination, pay to each Holder or Subsequent Holder who has delivered a valid
Consent to the Proposed Amendments at or prior to the Expiration Time, which
Consent has not been revoked, the Consent Fee for the Notes in respect of which
such Consent has been delivered by such Holder or Subsequent Holder and accepted
by the Company. The Amending Agreements will become effective upon execution by
the Company, the Guarantors, the Trustee and certain other secured debt
representatives under the Collateral Trust Agreement, as applicable. If the
Requisite Consents are received and the Proposed Amendments have become
effective, the Proposed Amendments will be binding on all holders of outstanding
Notes. If the Solicitation is terminated or withdrawn for any reason, the
Proposed Amendments will not become effective, and the Indenture and Collateral
Trust Agreement shall continue in full force and effect, unamended by the
Proposed Amendments.
A Holder as of the Record Date who does not consent to the
Proposed Amendments or who holds Notes in respect of which no Consent has been
submitted or whose Consent is submitted after the Expiration Time or whose
Consent is revoked before the Amending Agreements become effective will not be
eligible to receive a Consent Fee. If the Solicitation is terminated for any
reason before the Expiration Time, or the conditions thereto are neither
satisfied nor waived, the Consents will be voided and the Amending Agreements
will not be executed. The delivery of a Consent will not affect a Holder³s right
to sell or transfer its Notes. All Consents received at or prior to the
Expiration Time and not revoked will be effective notwithstanding a transfer of
such Notes subsequent to the Record Date. If a Holder delivers a Consent and
subsequently transfers its Notes at or prior to the Expiration Time, any Consent
Fee payment with respect to such Notes will be made to the Holder who delivered
the Consent.
Beneficial or Non-Registered Holders who wish to provide a
Consent and whose Notes are held, as of the Record Date, in the name of an
Intermediary or in the name of a clearing agency of which such Intermediary is a
participant, must contact such Intermediary promptly and instruct such
Intermediary to promptly execute and deliver an appropriate consent form on
behalf of the Beneficial or Non-Registered Holders at or prior to the Expiration
Time in accordance with applicable Consent procedures of such Intermediary. See Procedures for Delivering Consents Consent
Procedures for Holders Whose Notes Are Not Held in Their Name.
5
The Consent Fee is US$2.50 for each US$1,000 principal amount
of Notes in respect of which a valid Consent is received by the Tabulation Agent
and Payment Agent prior to the Expiration Time and which has been accepted by
the Company and not revoked. Notwithstanding anything to the contrary herein, in
the case of any Notes that are registered in the name of a clearing agency of
which an Intermediary is a participant, the Company may satisfy its obligation
set out in the Solicitation Statement to pay to the Holder or Subsequent Holder
thereof a Consent Fee by paying such Consent Fee directly to the relevant
Intermediary, for the benefit of the beneficial owners of such Notes. All
amounts payable under the Solicitation will be paid in United States dollars.
Pursuant to applicable laws, the relevant Intermediary may, in certain
circumstances, be required to make withholdings from the amount otherwise
payable to a Holder or Subsequent Holder. No interest will be paid on the
Consent Fee.
The Supporting Noteholders have agreed with the Company that to
the extent they are entitled to receive the Consent Fee, they will waive such
fee.
In the event that the Solicitation is withdrawn or
otherwise is not completed, the Proposed Amendments will not become effective.
If the Amending Agreements are executed, the Holders
who do not deliver valid Consents at or prior to the Expiration Time or whose
Consent is revoked before the Amending Agreements become effective will be bound
thereby even though they did not consent to the Proposed Amendments and will not
receive the Consent Fee.
PURPOSE OF THE SOLICITATION
The purpose of the Solicitation is to obtain the Consent of
Holders of the Notes to amend certain terms of the Indenture and to make certain
related amendments to the Collateral Trust Agreement in order to, among other
things, secure the gold delivery obligations under the Financing Arrangements.
The Solicitation is being made in conjunction with, and is conditioned upon, the
conditions set forth herein. See Conditions to the Solicitation.
PROPOSED AMENDMENTS
The Company is soliciting the Consents of the Holders to the
Proposed Amendments. All statements herein regarding the substance of any
provision of the Proposed Amendments, the Indenture and the Collateral Trust
Agreement are qualified in their entirety by, and are subject to, the full text
of the Indenture, the Collateral Trust Agreement and the Amending Agreements.
Copies of the Indenture and the Collateral Trust Agreement are available on the
Company³s profile on SEDAR and on EDGAR, which can be accessed at www.sedar.com
and www.sec.gov, respectively.
The following statements are only a summary of the
general effect of certain provisions of the Amending Agreements. The Amending
Agreements are expected to be substantially in the form attached as Schedule A
hereto. Reference should be made to the forms of Amending Agreements attached as
Schedule A hereto for a complete description of the Proposed
Amendments. Primarily, the Proposed Amendments would modify the
Indenture and the Collateral Trust Agreement as set out below. Although the
substance of the Proposed Amendments is detailed below, additional non-material
administrative amendments to the Indenture and the Collateral Trust Agreement
may be made to give effect to the intent of the Proposed Amendments detailed
below. Wherever particular sections or defined terms of the Indenture or the
Collateral Trust Agreement are referred to, such sections or defined terms are
incorporated by reference.
6
Amendments to the Indenture
The Proposed Indenture Amendment would have the following
effect:
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The obligations of the Company (and its applicable
affiliates) as set out in the Financing Arrangements will be added to the
definition of Indebtedness under the Indenture, and also added as
exceptions to the limitation on the Incurrence (as defined in the
Indenture) of Indebtedness (as defined in the Indenture) by the Company or
its Restricted Subsidiaries (as defined in the Indenture); |
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ii. |
The Financing Arrangements will be excluded from the
definition of Asset Disposition under the Indenture; |
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iii. |
The definition of "Parity Lien Debt" and "Priority Lien
Debt" will be amended to delete the requirement that the designation of
such Indebtedness must occur on or before the date on which the
Indebtedness is Incurred by the Company or one of its Restricted
Subsidiaries; |
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iv. |
The Indebtedness permitted under Section 4.09(b)(1) of
the Note Indenture (which qualifies as Priority Lien Debt (as defined in
the Indenture)) will be expanded to include (1) Priority Stream
Obligations (as defined in the Amending Agreements) (generally, defined to
be the obligation to deliver the payable gold as it is produced pursuant
to the stream) and (2) Twangiza Forward Secured Obligations (as defined in
the Amending Agreements); |
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v. |
The Indebtedness permitted under Section 4.09(b)(19) of
the Indenture (which qualifies as Parity Lien Debt (as defined in the
Indenture)) will be expanded to include (1) the Namoya Streaming Secured
Obligations (as defined in the Amending Agreements) (excluding the amount
of any Priority Stream Obligations) and (2) the Deposit Balance Amount (as
defined in the Amending Agreements); |
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vi. |
The prohibition on restricting intercompany distributions
in Section 4.08(a) of the Indenture will be amended to apply only where
the effect of such restriction would be to cause the Company or any of its
Restricted Subsidiaries to not have sufficient funds to satisfy its
obligations under the Indenture or under any other Secured Debt Document
(as defined in the Indenture); and |
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vii. |
The Events of Default (as defined in the Indenture) in
Section 6.01 of the Indenture will be revised to include any Banro Event
of Default (as defined in the Financing Arrangements) in respect of which
the grace period has expired. |
Amendments to the Collateral Trust Agreement
In general, other than amendments consequential to those set
out in the Proposed Indenture Amendment, the primary purpose of the Related
Collateral Trust Agreement Amendment is to reflect that the Namoya Streaming
Obligations represent a pre-paid purchase obligation of the seller under the
Gold Streaming Agreement. To that end, among other things, the Related
Collateral Trust Agreement Amendment adds a new covenant that the Trustee will
only sell, transfer or dispose of the collateral in a manner that complies with
the transfer provisions of the Gold Streaming Agreement. The Related Collateral
Trust Agreement Amendment further provides that provided the Trustee so sells,
transfers or disposes of the collateral in compliance with such transfer
restrictions, the stream purchaser will have no entitlement to share in the
proceeds of the disposition except to satisfy the Priority Stream Obligations
due and owing prior to such disposition and not assumed by the transferee of
such collateral. Further, the payment priorities in the Collateral Trust
Agreement would be amended to provide that the Priority Stream Obligations will
be paid in priority to the other Priority Lien Obligations.
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RECORD DATE
The Record Date for the determination of Holders entitled to
give Consents pursuant to the Solicitation is 5:00 p.m. (Toronto time) on
February 26, 2015. This Solicitation Statement and the accompanying Consent Form
are being sent to all Holders as of the Record Date. The Company reserves the
right to establish from time to time any new date as the Record Date with
respect to the Notes for purposes of the Solicitation and, thereupon, any such
new date will be deemed to be the Record Date for purposes of such
Solicitation.
PROCEDURES FOR DELIVERING CONSENTS
Holders who wish to consent to the Proposed Amendments should
so indicate by completing the appropriate boxes in, and signing and dating, the
accompanying Consent Form. Beneficial or Non-Registered Holders should
not deliver the Consent Form but must follow the Consent procedures of their
Intermediary. See Procedures for Delivering Consents Consent
Procedures for Holders Whose Notes Are Not Held in Their Name.
If a Consent relates to fewer than all the Notes held of record
as of the Record Date by the Holder providing such Consent, such Holder must
indicate on the Consent Form the name(s) and address(es) and aggregate dollar
amount (in integral multiples of US$1,000) of such Notes to which the Consent
relates. Otherwise, the Consent will be deemed to relate to all Notes held of
record as of the Record Date by the Holder. The Holder will receive the Consent
Fee for only that portion of such Notes to which the Consent relates, to the
extent that the Holder³s Consent has been accepted by the Company and not
revoked.
A properly completed, executed and dated Consent Form must be
delivered to the Tabulation Agent and Payment Agent by mail, first-class postage
prepaid, hand delivery, overnight courier or by facsimile transmission or email
(followed in the case of facsimile transmission or email by physical delivery of
the originally executed Consent Form) at the address or facsimile number or
email address of the Tabulation Agent and Payment Agent set forth on the back
cover of this Solicitation Statement at or prior to the Expiration Time.
Delivery of Consent Forms should be made sufficiently in advance of the
Expiration Time to assure that the Consent Form is received at or prior to the
Expiration Time (and, in the case of facsimile or email transmission, that the
original Consent Form is received by the Tabulation Agent and Payment Agent
prior to 5:00 p.m. (Toronto time) on the fourth business day following the
Expiration Time). Under no circumstances should any person deliver Notes to the
Company, the Trustee, the Solicitation Agent or the Tabulation Agent and Payment
Agent. The Company reserves the right to receive Consent Forms by any other
reasonable means or in any form that reasonably evidences the giving of Consent.
Only Holders and Subsequent Holders may deliver a Consent Form
and be paid the Consent Fee. Consent Forms executed by the Holder or Subsequent
Holders should be executed exactly the same way as their name(s) appear(s) on
the Notes.
Consent Procedures for Holders Whose Notes Are Not Held
in Their Name
Only Holders and Subsequent Holders are permitted to complete
and deliver a Consent Form as described above. You may be a beneficial owner of
Notes (a Beneficial or
Non-Registered Holder) if your Notes
are registered either:
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in the name of an Intermediary with whom you deal in
respect of the Notes, such as, among others, banks, trust companies,
securities dealers or brokers and trustees or administrators of
self-administered RRSPs, RRIFs, RESPs and similar plans; or |
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in the name of a clearing agency (such as CDS) of which
the Intermediary is a participant. |
8
Any Beneficial or Non-Registered Holder who wishes to deliver a
Consent should not execute the Consent Form. Instead, he, she or it must
instruct the relevant Intermediary to execute an appropriate consent form on
his, her or its behalf.
The Company has distributed copies of the Solicitation
Statement to Intermediaries who are required to forward these materials to
Beneficial or Non-Registered Holders. If you are a Beneficial or Non Registered
Holder you will be provided with materials by your applicable Intermediary which
must be completed and signed by you in accordance with the directions of such
Intermediary or you will receive instructions from your applicable Intermediary
on how to validly Consent.
The purpose of these procedures is to permit you, as a
Beneficial or Non-Registered Holder, to provide your Consent in respect of your
Notes. Beneficial or Non-Registered Holders should promptly contact
their Intermediaries and obtain and follow their Intermediaries instructions
with respect to the applicable consent procedures and deadlines, which may be
earlier than the deadlines that are set out in this Solicitation Statement.
Consent Procedures for Purchasers of Notes After the
Record Date
If a person purchases Notes after the Record Date and the
Holder of such Notes as of the Record Date previously consented (or thereafter
consents) to the Proposed Amendments, such Consent of the Holder as of the
Record Date, and not the subsequent registered holder, will be eligible for
acceptance by the Tabulation Agent and Payment Agent if it was (or is) validly
submitted. However, if a person purchases Notes after the Record Date, the
purchaser may revoke the previous Consent, if applicable, and submit a new
Consent, to the extent it is a Subsequent Holder, or obtain an appropriate
Consent from the Holder as of the Record Date and submit such Consent on or
prior to the Expiration Time.
Validity of Consents
All questions as to the validity, form, eligibility, receipt
and acceptance of any Consent will be resolved by the Company, whose
determination will be final and binding. The Company reserves the absolute right
to reject any or all Consents that are not in proper form or the acceptance of
which could, in the opinion of the Company or its counsel, be unlawful. The
Company also reserves the right to waive any defects or irregularities or
conditions of delivery as to a particular Consent, which the Company may require
to be cured within such time as the Company determines. None of the Company, the
Solicitation Agent, the Tabulation Agent and Payment Agent, the Trustee or any
other person shall have any duty to give notification of any such defects or
irregularities or waiver, nor shall any of them incur any liability for failure
to give such notification. Deliveries of Consent Forms will not be deemed to
have been made until such defects or irregularities have been cured or waived.
The Company³s interpretation of the terms and conditions of the Solicitation
(including this Solicitation Statement and the accompanying Consent Form and the
instructions hereto and thereto) will be conclusive, final and binding on all
parties.
Revocation of Consents
All properly completed and executed Consent Forms received on
or prior to the Expiration Time will be counted, notwithstanding any transfer of
the Notes to which such Consent Form relates. A Consent delivered by a Holder
may be revoked by such Holder or a Subsequent Holder by written notice to the
Tabulation Agent and Payment Agent or the Trustee before the date the Proposed
Amendments become effective. Each Holder or Subsequent Holder, by delivering a
Consent pursuant to the Solicitation, will agree in the Consent Form that its
Consent will continue once delivered, unless validly revoked, even if the
Solicitation shall be extended beyond the initial Expiration Time. A Consent by
a Holder or Subsequent Holder will bind such Holder or Subsequent Holder, as the
case may be, and every subsequent registered holder of such Notes or portion of
such Notes, even if notation of the Consent is not made on such Notes.
9
CONDITIONS TO THE SOLICITATION
Notwithstanding any other provisions of the Solicitation and in
addition to (and not in limitation of) the Company³s right to extend and/or
amend the Solicitation, the Company may terminate the Solicitation, if the
Amending Agreement Condition shall not have been satisfied. The
Amending Agreement Condition means receipt of the Requisite
Consents with respect to the Proposed Amendments and the execution of the
Amending Agreements by the Company, the Guarantors, the Trustee and certain
other secured debt representatives under the Collateral Trust Agreement, as
applicable.
Notwithstanding any other provision of the Solicitation and in
addition to (and not in limitation of) the Company³s right to extend and/or
amend the Solicitation, the Company may terminate the Solicitation, if any of
the following (the General Conditions) have occurred:
-
there shall have been instituted, threatened or be pending any action or
proceeding (or there shall have been any material adverse development to any
action or proceeding currently instituted, threatened or pending) before or by
any court or governmental, regulatory or administrative agency or
instrumentality, or by any other person, in connection with the Solicitation
that, in the sole judgment of the Company, either (a) is, or is reasonably
likely to be, materially adverse to the business, operations, properties,
condition (financial or otherwise), assets, liabilities or prospects of the
Company and its subsidiaries, taken as a whole, or (b) would or might
prohibit, prevent, restrict or delay consummation of the Solicitation or the
Proposed Amendments;
-
an order, statute, rule, regulation, executive order, stay, decree,
judgment or injunction shall have been proposed, enacted, entered, issued,
promulgated, enforced or deemed applicable by any court or governmental,
regulatory or administrative agency or instrumentality that, in the sole
judgment of the Company, either (a) is, or is reasonably likely to be,
materially adverse to the business, operations, properties, condition
(financial or otherwise), assets, liabilities or prospects of the Company and
its subsidiaries, taken as a whole or (b) would or might prohibit, prevent,
restrict or delay consummation of the Solicitation or the Proposed Amendments;
-
there shall have occurred or be likely to occur any event affecting the
business or financial affairs of the Company that, in the sole judgment of the
Company, would or might prohibit, prevent, restrict or delay consummation of
the Solicitation or the Proposed Amendments;
-
the Trustee shall have objected in any respect to or taken action that
could, in the sole judgment of the Company, adversely affect the consummation
of the Solicitation or the Proposed Amendments or shall have taken any action
that challenges the validity or effectiveness of the procedures used by the
Company in the Solicitation; or
-
there shall have occurred (a) any general suspension of, or limitation on
prices for, trading in securities in Canadian or the United States securities
or financial markets, (b) any significant adverse change in the price of the
Notes in Canada, the United States or other major securities or financial
markets, (c) a material impairment in the trading market for debt securities,
(d) a declaration of a banking moratorium or any suspension of payments in
respect to banks in Canada, the United States or other major financial
markets, (e) any limitation (whether or not mandatory) by any government or
governmental, administrative or regulatory authority or agency, domestic or
foreign, or other event that, in the reasonable judgment of the Company, might
affect the extension of credit by banks or other lending institutions, (f) a
commencement of a war or armed hostilities or other national or international
calamity directly or indirectly involving Canada or the United States, or (g)
in the case of any of the foregoing existing on the date hereof, a material
acceleration or worsening thereof.
The foregoing conditions are for the sole benefit of the
Company and may be asserted by the Company regardless of the circumstances
giving rise to any such condition (including any action or inaction by the
Company) and may be waived, in whole or in part, at any time and from time to
time, prior to the Expiration Time in the Company³s sole discretion. The failure
by the Company at any time to exercise any of the foregoing rights will not be deemed a waiver of any
other right and each right will be deemed an ongoing right which may be asserted
at any time and from time to time. Notwithstanding any other provisions of the
Solicitation, the Company has the right, in its sole discretion, to terminate
the Solicitation at any time. In any such event, the Company will provide notice
by public announcement.
10
Support Agreements
Pursuant to the terms of support agreements dated February 27,
2015 (the Support Agreements) between the Company and each of
Gramercy Funds Management LLC and certain funds under management by BlackRock
Investment Management (UK) Limited (collectively, the Supporting
Noteholders) and subject to the conditions set out therein, the
Supporting Noteholders agreed to, in respect of the Notes beneficially owned, or
over which control or direction is exercised, directly or indirectly, by them,
consent to the Proposed Amendments.
The Supporting Noteholders collectively beneficially own, or
exercise control or direction over, directly or indirectly, an aggregate
principal amount of Notes representing a majority of the currently issued and
outstanding Notes.
EXPIRATION; EXTENSION; AMENDMENT; TERMINATION
The Solicitation will expire at 5:00 p.m. (Toronto time) on
March 26, 2015, unless extended by the Company. The Company expressly reserves
the right to extend the Solicitation for such period or periods as it may
determine, in its sole discretion from time to time, by giving written or oral
notice to the Tabulation Agent and Payment Agent and by making a public
announcement by press release by 9:00 a.m. (Toronto time) on the next business
day following the previously established Expiration Time. Without limiting the
manner in which any public announcement may be made, the Company shall have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by issuing a press release through a newswire service.
During any extension of the Solicitation, all Consents delivered to the
Tabulation Agent and Payment Agent will remain effective.
To the extent it is legally permitted to do so, the Company
expressly reserves the absolute right, at any time prior to the effectiveness of
the Proposed Amendments, to
-
terminate or abandon the Solicitation for any reason,
-
waive any condition to the Solicitation (except that the receipt of the
Requisite Consents is required for the approval of the Proposed Amendments and
may not be waived),
-
extend the Expiration Time,
-
amend any of the terms of the Solicitation, including the amount or form of
consideration to be paid pursuant to the Solicitation, provided, however, that
in no event will the Company reduce the amount of the Consent Fee without at
least five business days³ notice.
If the Company makes a material change in the terms of the
Solicitation or the information concerning the Solicitation, the Company will
promptly disclose such amendment, modification or waiver in a manner reasonably
calculated to inform such Holders of such change. However, subject to applicable
law and the immediately preceding sentence and without limiting the manner in
which the Company may choose to make such disclosure, the Company shall have no
obligation to publish, advertise or otherwise communicate any such disclosure
other than by the timely release of such disclosure by way of a news release. If
the Solicitation is amended on or prior to the Expiration Time in a manner
determined by the Company in its sole discretion to constitute a material
adverse change to the Holders, the Company promptly will disclose such amendment
and, if deemed necessary by the Company, extend the Solicitation in order to
permit Holders to deliver Consents. In addition, the Company may, if it deems
appropriate, extend the Solicitation for any other reason.
11
MATERIAL TAX CONSIDERATIONS
Certain Canadian Federal Income Tax Considerations
The following is, at the date hereof, a summary of the
principal Canadian federal income tax considerations generally applicable to a
Holder that beneficially owns the relevant Notes and to a Beneficial or
Non-Registered Holder who, in either case, for purposes of the Income Tax
Act (Canada) (the Tax Act) and at all relevant times,
holds the Notes as capital property, deals at arm³s length, and is not
affiliated, with the Company and deals at arm³s length with any purchaser under
the Forward Agreements or Gold Streaming Agreement (a Relevant
Holder). Generally, the Notes will be considered capital property to a
Relevant Holder provided that the Relevant Holder does not hold the Notes in the
course of carrying on a business of buying and selling securities and has not
acquired them as an adventure or concern in the nature of trade. Certain
Relevant Holders who are resident in Canada whose Notes might not otherwise
qualify as capital property may, in certain circumstances, be entitled to have
such Notes and every other Canadian security (as defined in the Tax Act) owned
by such Relevant Holder in the taxation year of the election and all subsequent
taxation years deemed to be capital property by making the irrevocable election
permitted by subsection 39(4) of the Tax Act. Such Relevant Holders should
consult their own tax advisors having regard to their own particular
circumstances.
This summary is not applicable to a Relevant Holder: (i) that
is a financial institution (as defined in the Tax Act for purposes of the
mark-to-market rules); (ii) a specified financial institution as defined in
the Tax Act; (iii) an interest in which is a tax shelter investment (as
defined in the Tax Act); or (iv) that has elected to report the Relevant
Holder³s Canadian tax results (as defined in the Tax Act) in a currency other
than the Canadian currency. Such Relevant Holders should consult their own tax
advisors having regard to their particular circumstances.
This summary is based upon the provisions of the Tax Act and
the regulations thereunder (the Regulations) in force at the
date of this Solicitation, all specific proposals to amend the Tax Act and
Regulations publicly announced by or on behalf of the Minister of Finance
(Canada) prior to the date hereof (the Tax Proposals) and the
Company³s understanding of the administrative practices and assessing policies
of the Canada Revenue Agency (the CRA) made public prior to
the date hereof. There can be no assurance that the Tax Proposals will be
implemented in their current form or at all. This summary is not exhaustive of
all possible income tax considerations and, except for the Tax Proposals, does
not otherwise take into account or anticipate any changes in law or practice,
whether by way of judicial, governmental or legislative decision or action or
changes in the administrative practices or assessing policies of the CRA, nor
does it take into account tax legislation or considerations of any province or
foreign jurisdiction. The income and other tax consequences of disposing of the
Notes will vary depending on the particular circumstances of the Relevant Holder
thereof, including the province in which the Relevant Holder resides or carries
on business.
This summary is of a general nature only and is not intended to
be, nor should it be construed to be, legal or tax advice to any particular
Relevant Holder, and no representations with respect to the income tax
consequences to any particular Relevant Holder are made. Accordingly, Relevant
Holders should consult their own tax advisors for advice with respect to the tax
consequences to them of disposing of the Notes, including the application and
effect of the income and other tax laws of any country, province, state or local
tax authority.
Taxation of Relevant Holders Resident in Canada
The following portion of this summary is applicable to a
Relevant Holder who, for the purposes of the Tax Act and who at all relevant
times, is resident, or is deemed to be resident, in Canada (a Resident
Holder).
12
Receipt of the Consent Fee
While there is no authority addressing directly the Canadian
tax treatment of the receipt of the Consent Fee, a Resident Holder who receives
the Consent Fee will generally be required to include the amount of such Consent
Fee in computing the income of the Resident Holder for the taxation year in
which such Consent Fee is received. Resident Holders should consult their own
tax advisors having regard to their own particular circumstances.
Proposed Amendments
The adoption of the Proposed Amendments should not result in a
novation or be considered to fundamentally alter the terms of the Notes for the
purposes of the Tax Act. Accordingly, the adoption of the Proposed Amendments
should not result in a disposition of the Notes for purposes of the Tax Act and
the adoption of the Proposed Amendments should not, in and of itself, give rise
to any consequences under the Tax Act to a Resident Holder.
Taxation of Relevant Holders Not Resident in Canada
The following summary is generally applicable to a Relevant
Holder who, for the purposes of the Tax Act and any applicable income tax
convention between Canada and the jurisdiction in which such Holder resides and
who in either case at all relevant times (i) is not, and is not deemed to be,
resident in Canada, (ii) is neither a specified shareholder of the Company nor
a person not dealing at arm³s length with a specified shareholder of the
Company as defined in subsection 18(5) of the Tax Act and (iii) does not use or
hold, and is not deemed to use or hold, the Notes in a business carried on in
Canada (a NonResident Holder).
Receipt of the Consent Fee
A Non-Resident Holder should not be subject to Canadian
withholding tax solely as a result of the payment of the Consent Fee by the
Company to the Non-Resident Holder.
Proposed Amendments
The Proposed Amendments should not, in and of themselves, give
rise to any consequences under the Tax Act to a Non-Resident Holder.
Certain United States Federal Income Tax Consequences
The following is a general summary of certain U.S. federal
income tax consequences of (i) the receipt of the Consent Fee by U.S. Holders,
and (ii) the adoption of the Proposed Amendments. This summary is based upon
currently existing provisions of the Internal Revenue Code of 1986, as amended
(the Code), U.S. Treasury regulations promulgated thereunder
(the Regulations), and administrative and judicial
interpretations thereof, all as in effect on the date hereof and all of which
are subject to change, possibly with retroactive effect. The Company does not
intend to seek or receive a ruling from the Internal Revenue Service (the
IRS) on any of the tax considerations described herein.
This summary does not discuss all aspects of U.S. federal
income taxation that may be important to particular U.S. Holders in light of
their individual investment circumstances or the U.S. federal income tax
consequences to U.S. Holders subject to special treatment under U.S. federal
income tax laws, such as banks and other financial institutions, partnerships or
other pass-through entities, insurance companies, dealers in securities or
foreign currency, traders that have elected mark-to-market accounting,
tax-exempt organizations, certain former citizens or former long-term residents
of the United States, persons subject to the alternative minimum tax, persons
that hold the Notes as part of a straddle, hedge, conversion transaction,
synthetic security, or other integrated investment consisting of Notes and one
or more other positions, or U.S. Holders, as defined below, that have a
functional currency other than the U.S. dollar, all of whom may be subject to tax rules that differ
significantly from those summarized below. In addition, this summary does not
discuss the unearned income Medicare contribution tax, any foreign, state, or
local tax consequences, or any U.S. tax consequences (e.g., estate or gift tax)
other than U.S. federal income tax consequences. This summary assumes that U.S.
Holders hold their Notes as capital assets within the meaning of Section 1221
of the Code (generally, property held for investment).
13
As used herein, the term U.S. Holder means a
Beneficial or Non-Registered Holder that is or is treated as, for U.S. federal
income tax purposes:
-
an individual who is a citizen or resident of the United States;
-
a corporation (including any entity treated as a corporation for U.S.
federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia;
-
an estate the income of which is subject to U.S. federal income taxation
regardless of its source; or
-
a trust (A) if a court within the United States is able to exercise primary
jurisdiction over its administration and one or more U.S. persons has
authority to control all of its substantial decisions, or (B) if, in general,
it was in existence on August 20, 1996, was treated as a U.S. person under the
Code on the previous day and made a valid election to continue to be so
treated.
If a partnership is a Beneficial or Non-Registered Holder, the
U.S. federal income tax treatment of a partner in the partnership generally will
depend upon the status of the partner and the activities of the partnership.
Partnerships that are Beneficial or Non-Registered Holders, and
partners in such partnerships, should consult their own tax advisors regarding
the U.S. federal, state, local and non-U.S. tax consequences to them of receipt
of the Consent Fee and implementation of the Proposed Amendments.
This summary is for general purposes only. This summary
is not intended to be, and should not be construed to be, legal or tax advice to
any particular U.S. Holder of Notes. Each U.S. Holder (including any U.S. Holder
that does not consent to the Proposed Amendments) should consult its own tax
advisor regarding the U.S. federal, state, local and non-U.S. income and other
tax consequences of receipt of the Consent Fee and implementation of the
Proposed Amendments.
Certain U.S. Federal Income Tax Consequences to U.S. Holders
of Implementation of the Proposed Amendments
There can be no assurance that the IRS will agree with the
conclusions set out herein, or that a court would approve such conclusions if
the IRS were to make a challenge thereto. Accordingly, each U.S. Holder should
consult its own tax advisor with regard to the application of United States
federal income tax laws to the Proposed Amendments and the Consent Fee, and as
to the effect of the laws of each state, local or non-U.S. taxing jurisdictions
to which it is subject.
Proposed Amendments and Consent Fee
The United States federal income tax consequences to U.S.
Holders consenting to the Proposed Amendments generally will depend upon whether
the adoption of the Proposed Amendments and/or the receipt of the Consent Fee,
considered alone or together, result in a deemed exchange of their Notes for
United States federal income tax purposes. Generally, the modification of a debt
instrument will result in a deemed exchange of the debt instrument for a new
debt instrument if such modification is significant within the meaning of
applicable Regulations promulgated under the Code. Under these Regulations, a modification is significant if, based on all the facts and
circumstances and taking into account all modifications collectively, the legal
rights and obligations that are altered and the degree to which they are altered
are economically significant. A significant modification will result if the
adoption of the Proposed Amendments result in (i) a substantial enhancement of
the Company³s capacity to meet payment obligations under the Notes where such
capacity was primarily speculative prior to the modification and is adequate
after the modification; or (ii) a substantial impairment of the Company³s
capacity to meet payment obligations under the Notes where such capacity was
adequate prior to the modification and is primarily speculative after the
modification.
14
The Company intends to take the position that the adoption of
the Proposed Amendments and the payment of the Consent Fee should not constitute
a significant modification of the Notes and, therefore, should not result in a
deemed exchange of a U.S. Holder³s Notes for new Notes for United States
federal income tax purposes. Absent a deemed exchange, U.S. Holders should not
recognize any gain or loss for United States federal income tax purposes with
respect to the Notes as a result of the adoption of the Proposed Amendments and
should be subject to tax only on the amount of the Consent Fee (as discussed
below). Further, a U.S. Holder should continue to have the same tax basis and
holding period in the Notes.
The United States federal income tax treatment of a U.S.
Holder³s receipt of the Consent Fee is unclear. The receipt of the Consent Fee
by a U.S. Holder may be treated for United States federal income tax purposes
either as (i) an additional payment received by the U.S. Holder with respect to
the Notes, or (ii) a separate fee paid for the U.S. Holder³s consent to the
Proposed Amendments. The Company intends to take the position that the Consent
Fee is a separate fee paid for the U.S. Holder³s consent to the Proposed
Amendments. As such, the Consent Fee paid to a U.S. Holder will constitute
ordinary income at the time it accrues or is received in accordance with such
U.S. Holder³s method of accounting for United States federal income tax
purposes. No assurance can be given, however, that this position, if challenged,
would be sustained. U.S. Holders should consult their own tax advisors regarding
the proper United States federal income tax treatment of their receipt of the
Consent Fee.
The foregoing characterization of the Proposed Amendments and
payment of the Consent Fee is not binding upon the IRS, and the IRS might assert
that the adoption of the Proposed Amendments and the Consent Fee, considered
alone or together, result in a significant modification of the Notes. If the
adoption of the Proposed Amendments and/or the payment of the Consent Fee were
treated as a significant modification of the Notes, U.S. Holders would be
treated as if they had exchanged their Notes for new Notes that reflect the
Proposed Amendments and the tax consequences could differ materially from the
tax consequences described above. Depending on the circumstances, such treatment
could result in a U.S. Holder recognizing gain or loss on the exchange to the
extent the U.S. Holder³s basis differs from the fair market value of the
modified Note. If the fair market value of the modified new Note exceeds the
U.S. Holder³s tax basis in such Note, the U.S. Holder will generally recognize
gain to the extent the fair market value of the modified Note exceeds its tax
basis. If there is a deemed exchange of a U.S. Holder³s original Notes for new
Notes and if the issue price of the new Notes is less than their stated
redemption price at maturity (with an exception for certain de minimis amounts),
the new Notes would be treated as issued with original issue discount, or
OID, which U.S. Holders would be required to accrue (regardless of their
method of accounting for United States federal income tax purposes) using a
constant yield method under the accrual rules for OID.
U.S. Holders should consult their own tax advisors regarding
the potential tax consequences of the adoption of the Proposed Amendments and
the receipt of the Consent Fee, including the risk that adoption of the Proposed
Amendments constitutes a significant modification of the Notes for United States
federal income tax purposes, and the tax consequences to them if the adoption of
the Proposed Amendments is so treated, including the inclusion of OID in income.
Backup Withholding
A U.S. Holder may be subject to backup withholding at a rate of
28 percent on any Consent Fees that are received unless such U.S. Holder (i) is
a corporation or is eligible for certain other exemptions and demonstrates this fact, or (ii) provides a correct taxpayer
identification number, certifies as to no loss of exemption from backup
withholding and otherwise complies with applicable requirements of the backup
withholding rules. Backup withholding is not an additional tax. The amount of
any backup withholding with respect to a Consent Fee will be allowed as a credit
against such U.S. Holder³s federal income tax liability and may entitle such
U.S. Holder to a refund, provided that the required information is timely
furnished to the IRS.
15
THE SOLICITATION AGENT AND THE TABULATION AGENT AND
PAYMENT AGENT
Solicitation Agent
CIBC World Markets Inc. currently acts as financial advisor to
the Company pursuant to an engagement agreement previously entered into by the
Company and CIBC World Markets Inc. (the Financial Advisory Engagement
Agreement). The Company has also engaged CIBC World Markets Inc. to
act as the solicitation agent in connection with the Solicitation. In this
capacity, the Solicitation Agent may contact Holders or Intermediaries or
Beneficial or Non-Registered Holders regarding the Solicitation and solicit
Consents.
At any given time, the Solicitation Agent may trade the Notes
or any other securities of ours for its own account, or for the accounts of its
customers, and accordingly, may hold a long or short position in the Notes or
those other securities.
The Solicitation Agent and its affiliates have provided, and
may provide in the future, investment banking and other financial services to us
and our affiliates for which they have received, and would receive, customary
compensation.
Tabulation Agent and Payment Agent
Equity Financial Trust Company has been appointed as Tabulation
Agent and Payment Agent for the Solicitation. Consents and all correspondence in
connection with the Solicitation should be sent or delivered by each Holder to
the Tabulation Agent and Payment Agent at the address and telephone number set
forth on the back cover of this Solicitation Statement.
Neither the Solicitation Agent nor the Tabulation Agent
and Payment Agent assumes any responsibility for the accuracy or completeness of
the information concerning the Company or its affiliates, the Indenture, the
Collateral Trust Agreement or the Notes contained herein or in the Consent Form
and other related documents or for any failure by the Company to disclose events
that may have occurred and may affect the significance or accuracy of such
information.
FEES AND EXPENSES
The Company will pay the Tabulation Agent and Payment Agent
customary fees for its services in connection with the Solicitation and will
reimburse the Solicitation Agent and the Tabulation Agent and Payment Agent for
their respective reasonable out-of-pocket expenses in connection therewith. The
Solicitation Agent will not receive any fees in connection with the Solicitation
in addition to any fees it may receive for its services as financial advisor
pursuant to the Financial Advisory Engagement Agreement. The Company may also
pay brokerage firms and other custodians, nominees and fiduciaries the
reasonable out-of-pocket expenses incurred by them in forwarding copies, if
required, of this Solicitation Statement and the Consent Form and related
materials to the Beneficial or Non-Registered Holders and in handling or
forwarding Consents by their customers, if required.
In connection with the Solicitation, directors and officers of
the Company may solicit Consents by mail, personally, by telephone, facsimile,
telegram, electronic communication or other similar methods. These directors and
officers will not be specifically compensated for these services.
16
No brokerage commissions will be payable by Holders who deliver
Consents to the Solicitation Agent, the Tabulation Agent and Payment Agent or
the Company. Holders who deliver Consents through an Intermediary should contact
such institution as to whether it charges any service fees.
MISCELLANEOUS
The Solicitation is being made to all Holders. The Company is
not aware of any jurisdiction in which the making of the Solicitation is not in
compliance with applicable law. If the Company becomes aware of any jurisdiction
in which the making of the Solicitation would not be in compliance with
applicable law, the Company will make a good faith effort to comply with any
such law. If, after such good faith effort, the Company cannot comply with any
such law, the Solicitation will not be made to (nor will deliveries of Consents
be accepted from or on behalf of) the Holders residing in such jurisdiction.
No person has been authorized to give any information or make
any representation on behalf of the Company not contained in this Solicitation
Statement or in the Consent Form and, if given or made, such information or
representation must not be relied upon as having been authorized.
The Consent Form should be sent or delivered by each Holder to
the Tabulation Agent and Payment Agent.
SCHEDULE A
FORM OF AMENDING AGREEMENTS
THIS FIRST AMENDING AGREEMENT TO INDENTURE made as of the day of ,
2015.
BETWEEN:
BANRO CORPORATION, a corporation continued under the
laws of the Canada, having an office in Toronto, Ontario
(the Company)
OF THE FIRST PART
- and -
BANRO CONGO MINING S.A., KAMITUGA MINING S.A., LUGUSHWA
MINING S.A., NAMOYA MINING S.A., and TWANGIZA MINING S.A.
(collectively, the DRC Guarantors)
OF THE SECOND PART
- and -
BANRO GROUP (BARBADOS) LIMITED, BANRO CONGO (BARBADOS)
LIMITED, KAMITUGA (BARBADOS) LIMITED, LUGUSHWA (BARBADOS) LIMITED, NAMOYA
(BARBADOS) LIMITED and TWANGIZA (BARBADOS) LIMITED
(collectively, the Barbados Guarantors)
OF THE THIRD PART
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EQUITY FINANCIAL TRUST COMPANY, a trust company
continued under the laws of Canada and registered to carry business in the
Province of Ontario
(the Trustee)
OF THE FOURTH PART
WHEREAS:
A. |
Each of the Company, the DRC Guarantors and the Trustee
has heretofore executed and delivered to the Trustee an indenture dated as
of March 2, 2012 (as amended, restated and supplemented from time to time,
the "Note Indenture") providing for the issuance of an unlimited
aggregate principal amount of 10% Senior Secured Notes due 2017 (the
"Notes"); |
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B. |
By Supplemental Note Indenture dated as of April 23,
2013, each Barbados Guarantor agreed to be a Guarantor under the Note
Indenture and to be bound by the terms of the Note Indenture applicable to
Guarantors, including Article 10 thereof; |
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C. |
Section 4.09 of the Note Indenture provides for certain
negative covenants relating to limitations on
Indebtedness; |
D. |
The Company, the Guarantors and the Trustee wish to amend
the Note Indenture to, among other things, revise the scope of such
negative covenants; and |
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E. |
Section 9.02(a) of the Note Indenture provides that the
Company, the Guarantors and the Trustee may amend or supplement the
Indenture Documents with the consent of the Holders of a majority in
principal amount of the Notes then outstanding voting as a single class,
which consent has been obtained; |
NOW THEREFORE, this First Amending Agreement witnesseth
and it is hereby agreed and declared as follows:
1. |
Capitalized Terms |
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Except as otherwise provided for herein, all capitalized
terms and expressions used in this First Amending Agreement shall have the
meanings ascribed to them in the Note Indenture. |
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2. |
Amendments |
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a. |
The following are added as additional definitions in
Section 1.01 of the Note Indenture: |
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'Deposit Balance Amount means the principal amount of
any Indebtedness, which amount shall not exceed $60,000,000 less the
Deposit (as defined in the Namoya Streaming Agreement) and which amount
shall be outstanding for a period not to exceed three years from the date
hereof; |
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Forward Sale/Streaming Agreements means the Namoya
Streaming Agreement, the Twangiza Forward Agreement - 1 and the Twangiza
Forward Agreement - 2; |
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Forward Sale/Streaming Facilities means the
transactions described in the Forward Sale/Streaming
Agreements; |
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Namoya Payable Gold has the meaning ascribed to
Payable Gold in the Namoya Streaming Agreement; |
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Namoya Purchaser has the meaning ascribed to
Purchaser in the Namoya Streaming Agreement; |
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"Namoya Streaming Agreement" means the Gold Streaming
Agreement dated February 27, 2015 among Namoya GSA Holdings, the Company
and Namoya Mining S.A. (as amended or restated from time to
time); |
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"Namoya Streaming Obligations" means the liabilities and
obligations of the Company and certain of the Restricted Subsidiaries
under or in connection with the Namoya Streaming Agreement; |
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"Namoya Streaming Secured Obligations" means the Deposit
(as defined in the Namoya Streaming Agreement as in effect as of the date
hereof), which amount shall be reduced pursuant to the formula set out in
Section 9.2(a) of the Namoya Streaming Agreement as of the date
hereof; |
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Priority Stream Obligations means the obligation to,
without duplication, deliver the Namoya Payable Gold, including any Namoya
Payable Gold which, pursuant to the terms of the Namoya Streaming
Agreement, should have been delivered to or for the benefit of the Namoya
Purchaser but which was not delivered or which was used for another purpose in
contravention of the Namoya Streaming Agreement but excluding, for greater
certainty, any future obligation to deliver the Namoya Payable Gold, which shall
continue as part of the Namoya Streaming Obligations only; |
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"Twangiza Forward Agreement - 1" means
the Gold Purchase and Sale Agreement dated February 27, 2015 among Twangiza GFSA
Holdings, the Company and Twangiza Mining S.A. (as amended or restated from time
to time);
"Twangiza Forward Agreement - 2" means
the Gold Purchase and Sale Agreement dated February 27, 2015 among Twangiza GFSA
Holdings, the Company and Twangiza Mining S.A. (as amended or restated from time
to time);
"Twangiza Forward Obligations - 1"
means the liabilities and obligations of the Company and certain of the
Restricted Subsidiaries under or in connection with the Twangiza Forward
Agreement 1, referred to therein as the PSA Obligations;
"Twangiza Forward Secured Obligations
- 1" means $20,000,000 (being the Prepayment Amount in the Twangiza Forward
Agreement 1), which amount shall be reduced by $555,556 on the date of
delivery of each Scheduled Monthly Quantity (as defined in the Twangiza Forward
Agreement 1 as in effect as of the date hereof) of gold, which secured
obligations are referred to in the Twangiza Forward Agreement 1 as the
Secured Amount;
"Twangiza Forward Obligations - 2"
means the liabilities and obligations of the Company and certain of the
Restricted Subsidiaries under or in connection with the Twangiza Forward
Agreement 2, referred to therein as the PSA Obligations;
"Twangiza Forward Secured Obligations
- 2" means $20,000,000 (being the Prepayment Amount in the Twangiza Forward
Agreement 2), which amount shall be reduced by $555,556 on the date of
delivery of each Scheduled Monthly Quantity (as defined in the Twangiza Forward
Agreement 2 as in effect as of the date hereof) of gold, which secured
obligations are referred to in the Twangiza Forward Agreement 2 as the
Secured Amount;
"Twangiza Forward Obligations" means,
collectively, the Twangiza Forward Obligations - 1 and the Twangiza Forward
Obligations - 2;"
"Twangiza Forward Secured Obligations"
means, collectively, the Twangiza Forward Secured Obligations - 1 and the
Twangiza Forward Secured Obligations - 2;"
Confirmation that Namoya Streaming
Obligations and Twangiza Forward Obligations permitted under the Note
Indenture
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b. |
The following is added to the definition of
"Indebtedness" in Section 1.01 of the Note Indenture as new paragraph (11)
thereof: |
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"(11) the Namoya Streaming Obligations and the Twangiza
Forward Obligations." |
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c. |
The following is added to the definition of "Asset
Disposition" in Section 1.01 of the Note Indenture as new paragraph (19)
thereof: |
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"(19) the Forward Sale/Streaming Facilities." |
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d. |
Subsection (2)(a) of the definition of "Parity Lien Debt"
in Section 1.01 of the Note Indenture is deleted in its entirety and
replaced with the following: |
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"such Indebtedness is designated by the Company, in an
Officers Certificate delivered to each Parity Debt Representative and the
Collateral Agent, as Parity Lien Debt for the purposes of the Secured
Debt Documents; provided that no Obligation or Indebtedness may be
designated as both Parity Lien Debt and Priority Lien Debt, except for the
Namoya Streaming Obligations;" |
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e. |
Subsection (1) of the definition of "Priority Lien Debt"
in Section 1.01 of the Note Indenture is deleted in its entirety and
replaced with the following: |
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"such Indebtedness is designated by the Company, in an
Officers Certificate delivered to each Priority Debt Representative and
the Collateral Agent, as Priority Lien Debt for the purposes of the
Secured Debt Documents; provided that no Obligation or Indebtedness may be
designated as both Parity Lien Debt and Priority Lien Debt, except for the
Namoya Streaming Obligations;" |
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f. |
The following is added to Section 4.09(b) of the Note
Indenture as new paragraph (20) thereof: |
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"(20) the Namoya Streaming Obligations and the Twangiza
Forward Obligations." |
Priority Liens to include Priority Stream Obligations and
Twangiza Forward Secured Obligations
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g. |
Section 4.09(b)(1) is deleted and the following
substituted therefor: |
"(1)
Indebtedness of the Company or any of its Restricted Subsidiaries pursuant to
Debt Facilities or Forward Sale/Streaming Facilities in an aggregate amount
of:
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(A) |
the Priority Stream Obligations, and |
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(B) |
an amount not to exceed the greater of: |
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(i) |
the greater of (1) $20,000,000 and (2) 5% of Total
Assets, and |
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(ii) |
the aggregate of (1) $15,000,000 and (2) the Twangiza
Forward Secured Obligations." |
Parity Liens to include Namoya Streaming Secured
Obligations
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h. |
Section 4.09(b)(19) is deleted and the following
substituted therefor: |
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"(19) in addition to the items referred to in clauses (1)
through (18) above and (20) below, Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate amount which, when taken together
with the amount of all other Indebtedness Incurred pursuant to this clause
(19) and then outstanding, shall not exceed the greater
of: |
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(A) |
the greater of (i) $5.0 million and (ii) 1% of Total
Assets, and |
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(B) the aggregate of (i) the Namoya Streaming Secured
Obligations, excluding the amount of any Priority Stream Obligation that is
included in Section 4.09(b)(1), and (ii) the Deposit Balance Amount, at anytime
outstanding.
Confirmation of Priority of Namoya Payable Gold as a
Pre-paid Purchase Obligation
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i. |
The definition of Priority Debt Sharing Confirmation is
deleted in its entirety and replaced with the following: |
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Priority Debt Sharing Confirmation means, as to any
Series of Priority Lien Debt, the written agreement of the holders of such
Series of Priority Lien Debt, as set forth in the credit agreement,
indenture or other agreement governing such Series of Priority Lien Debt,
for the benefit of all holders of each other existing and future Series of
Priority Lien Debt and each existing and future Priority Debt
Representative, that all Priority Lien Obligations will be and are secured
equally and ratably by all Liens at any time granted by the Borrower or
any other Obligor to secure any Obligations in respect of such Series of
Priority Lien Debt (except that the Priority Stream Obligations shall be
paid in priority to the other Priority Lien Obligations in accordance with
Section 3.4(a) of the Collateral Trust Agreement), whether or not upon
property otherwise constituting Collateral, that all such Liens will be
enforceable by the Collateral Agent for the benefit of all holders of
Priority Lien Obligations equally and ratably (except that the Priority
Stream Obligations shall be paid in priority to the other Priority Lien
Obligations in accordance with Section 3.4(a) of the Collateral Trust
Agreement), and that the holders of Obligations in respect of such Series
of Priority Lien Debt are bound by the provisions in the Collateral Trust
Agreement relating to the order of application of proceeds from
enforcement of such Liens, and consent to and direct the Collateral Agent
to perform its obligations under the Collateral Trust
Agreement. |
Permitting Certain Restrictions on Intercompany
Distributions
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j. |
The following is added at the end of Section
4.08(a): |
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"where the effect of such consensual encumbrance or
consensual restriction is to cause the Company or any of its Restricted
Subsidiaries to not have sufficient funds to satisfy its obligations
hereunder or under any other Secured Debt
Document. |
Cross Defaults to Forward Sale/Streaming Agreements
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k. |
The following is added to Section 6.01 as new paragraph
(6.1) thereof: |
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"(6.1) any Banro Event of Default under any of the
Forward Sale/Streaming Agreements (as defined therein) in respect of which
the grace period has expired; |
3. |
Amendments to Priority Debt Sharing
Confirmations |
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The parties hereto acknowledge and agree that each
Priority Debt Sharing Confirmation in the Indenture Documents or entered
into in connection with an Indenture Document, is hereby amended to
provide that the Priority Stream Obligations shall be paid in priority to
the other Priority Lien Obligations in accordance with Section 3.4(a) of
the Collateral Trust Agreement. |
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4. |
Amendments to Indenture Documents and Collateral
Documents |
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The parties hereto acknowledge and agree that all
Indenture Documents and Collateral Documents are deemed to be amended to
the extent required to reflect the amendments set forth in this First
Amending Agreement. |
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5. |
Further Steps |
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The Company and the Trustee are hereby authorized and
directed to take all such further steps as are necessary to give effect to
the amendments as set forth in this First Amending Agreement. |
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6. |
Incorporation into Note Indenture |
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This First Amending Agreement shall be read and construed
as if forming a part of the Note Indenture and the Note Indenture shall be
amended and revised to the extent required to give effect to this First
Amending Agreement. |
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7. |
Ratification |
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The Note Indenture, as amended by this First Amending
Agreement, is in all respects ratified and confirmed. |
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8. |
Governing Law |
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This First Amending Agreement shall be construed in
accordance with the laws of the Province of Ontario and shall be treated
in all respects as an Ontario contract. The parties hereby submit and
attorn to the jurisdiction of the courts of Ontario for all matters
related to this First Amending Agreement. |
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9. |
Counterparts |
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This First Amending Agreement may be executed in several
counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together shall constitute one and the same
instrument and notwithstanding their date of execution they shall be
deemed to be dated as of the date hereof. |
[signature page follows]
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IN WITNESS WHEREOF the parties have executed this First
Amending Agreement as of the date first above written.
BANRO CORPORATION
Per:_________________________________________________
Name:
Title:
BANRO CONGO MINING S.A.
Per:_________________________________________________
Name:
Title:
KAMITUGA MINING S.A.
Per:_________________________________________________
Name:
Title::
LUGUSHWA MINING S.A.
Per:_________________________________________________
Name:
Title:
NAMOYA MINING S.A.
Per:_________________________________________________
Name:
Title:
TWANGIZA MINING S.A.
Per:_________________________________________________
Name:
Title:
(signature page to indenture amendment)
BANRO GROUP (BARBADOS) LIMITED
Per:_________________________________________________
Name:
Title:
BANRO CONGO (BARBADOS) LIMITED
Per:_________________________________________________
Name:
Title:
KAMITUGA (BARBADOS) LIMITED
Per:_________________________________________________
Name:
Title:
LUGUSHWA (BARBADOS) LIMITED
Per:_________________________________________________
Name:
Title:
NAMOYA (BARBADOS) LIMITED
Per:_________________________________________________
Name:
Title:
TWANGIZA (BARBADOS) LIMITED
Per:_________________________________________________
Name:
Title:
(signature page to indenture amendment)
EQUITY
FINANCIAL TRUST COMPANY
Per:_________________________________________________
Name:
Title:
Per:_________________________________________________
Name:
Title:
(signature page to indenture amendment)
THIS FIRST AMENDING AGREEMENT TO COLLATERAL TRUST AGREEMENT made as day of
of the , 2015.
BETWEEN:
BANRO CORPORATION, a corporation continued under the
laws of the Canada, having an office in Toronto, Ontario
(the Company)
OF THE FIRST PART
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THE INITIAL GUARANTORS, as Initial Guarantors
(collectively, the Initial Guarantors)
OF THE SECOND PART
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EQUITY FINANCIAL TRUST COMPANY, a trust company
continued under the laws of Canada and registered to carry business in the
Province of Ontario
(the Indenture Trustee)
OF THE THIRD PART
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EQUITY FINANCIAL TRUST COMPANY, a trust company
continued under the laws of Canada and registered to carry business in the
Province of Ontario
(Collateral Agent)
OF THE FOURTH PART
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ECOBANK DRC SARL, a company continued under the laws of
the Democratic Republic of Congo
(Ecobank)
OF THE FIFTH PART
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GRAMERCY FUNDS MANAGEMENT LLC, a limited liability
company formed under the laws of Delaware
(Gramercy)
OF THE SIXTH PART
WHEREAS:
A. |
The Company, the Initial Guarantors, the Indenture
Trustee and Collateral Agent have heretofore executed and delivered a
collateral trust agreement dated as of March 2, 2012 (as amended, restated
and supplemented from time to time, the "CTA "); |
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B. |
By Joinder dated as of January 28, 2013, Ecobank agreed
to be bound by the terms of the CTA as a Secured Debt
Representative; |
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C. |
By Joinder dated as of August 18, 2014, Gramercy agreed
to be bound by the terms of the CTA as a Secured Debt
Representative; |
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E. |
T he Company, the Initial Guarantors, the Indenture
Trustee and Collateral Agent wish to amend the CTA to revise, among other
things, the remedies available to the Collateral Agent upon an Actionable
Default and the application of proceeds pursuant to Section 3.4;
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F. |
Section 9.1(a) of the CTA provides that the Collateral
Agent, acting as directed by an Act of Instructing Debtholders, and the
Obligors may amend or supplement the CTA, provided that the consent of the
requisite percentage or number of holders of each Series of Secured Debt
so affected under the applicable Secured Debt Document has been obtained,
which consent to this First Amending Agreement has been
obtained. |
NOW THEREFORE, this First Amending Agreement witnesseth
and it is hereby agreed and declared as follows:
1. |
Capitalized Terms |
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Except as otherwise provided for herein, all capitalized
terms and expressions used in this First Amending Agreement shall have the
meanings ascribed to them in the CTA. |
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2. |
Amendments to CTA |
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a. |
The following are added as additional definitions in
Section 1.1 of the CTA: |
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Disposition means with respect to any asset of any
Person, any direct or indirect sale (including, where the context so
requires, the sale of the Person itself), lease (where such Person is the
lessor of such asset), assignment, cession, transfer (including any
transfer of title or possession), exchange, conveyance, release or gift of
such asset, and includes the collection, foreclosure or other realization
upon collateral pledged by such Person; and Dispose, Disposal
and Disposed have meanings correlative thereto; |
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Forward Sale/Streaming Agreements has the meaning
ascribed thereto in the Indenture;" |
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FSA Purchasers means the Namoya Purchaser and the
Twangiza Purchaser;" |
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"Namoya Streaming Agreement" has the meaning ascribed
thereto in the Indenture;" |
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Namoya Payable Gold has the meaning ascribed to
Payable Gold in the Namoya Streaming Agreement; |
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Namoya Purchaser has the meaning ascribed to
Purchaser in the Namoya Streaming Agreement; |
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Priority Stream Obligations has the meaning ascribed
thereto in the Indenture; |
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Twangiza Purchaser has the meaning ascribed to
Purchaser in each of the Twangiza Forward Agreement 1 and Twangiza
Forward Agreement - 2; |
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b. |
The definitions of Permitted Prior Liens and Priority
Debt Sharing Confirmation and are deleted in their entirety and replaced
with the following: |
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Permitted Prior Liens means Liens that arise by
operation of law and are not voluntarily granted, to the extent entitled
by law to priority over the Liens created by the Priority Lien
Documents. |
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Priority Debt Sharing Confirmation means, as to any
Series of Priority Lien Debt, the written agreement of the holders of such
Series of Priority Lien Debt, as set forth in the credit agreement,
indenture or other agreement governing such Series of Priority Lien Debt,
for the benefit of all holders of each other existing and future Series of
Priority Lien Debt and each existing and future Priority Debt
Representative, that all Priority Lien Obligations will be and are secured
equally and ratably by all Liens at any time granted by the Borrower or
any other Obligor to secure any Obligations in respect of such Series of
Priority Lien Debt (except that the Priority Stream Obligations shall be
paid in priority to the other Priority Lien Obligations in accordance with
Section 3.4(a)), whether or not upon property otherwise constituting
Collateral, that all such Liens will be enforceable by the Collateral
Agent for the benefit of all holders of Priority Lien Obligations equally
and ratably (except that the Priority Stream Obligations shall be paid in
priority to the other Priority Lien Obligations in accordance with Section
3.4(a)), and that the holders of Obligations in respect of such Series of
Priority Lien Debt are bound by the provisions in this Agreement relating
to the order of application of proceeds from enforcement of such Liens,
and consent to and direct the Collateral Agent to perform its obligations
under this Agreement. |
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c. |
Subsection (b)(i) of the definition of "Parity Lien Debt"
in Section 1.1 of the CTA is deleted in its entirety and replaced with the
following: |
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"such Indebtedness is designated by the Borrower, in an
Officers Certificate delivered to each Parity Debt Representative and the
Collateral Agent, as Parity Lien Debt for the purposes of the Secured
Debt Documents; provided that no Obligation or Indebtedness may be
designated as both Parity Lien Debt and Priority Lien Debt, except for
Namoya Streaming Obligations;" |
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d. |
Subsection (a) of the definition of "Priority Lien Debt"
in Section 1.1 of the CTA is deleted in its entirety and replaced with the
following: |
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"such Indebtedness is designated by the Borrower, in an
Officers Certificate delivered to each Priority Debt Representative and
the Collateral Agent, as Priority Lien Debt for the purposes of the
Secured Debt Documents; provided that no Obligation or Indebtedness may be
designated as both Parity Lien Debt and Priority Lien Debt, except for
Namoya Streaming Obligations;" |
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e. |
The following is added to the end of the first sentence
of Section 2.5 of the CTA: |
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(except that the Priority Stream Obligations shall be
paid in priority to the other Priority Lien Obligations in accordance with
Section 3.4(a)). |
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f. |
The following is added to Section 3.3 of the
CTA: |
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"Notwithstanding any Act of Instructing Debtholders or
any provision in this Agreement or in any other Collateral Document, the
Collateral Agent shall not Dispose of nor shall it request, approve or
consent to any Disposition of the Collateral unless such Disposition
complies in all respects with the transfer restrictions in the Forward
Sale/Streaming Agreements. If the Disposition of Collateral is effected in
accordance in all respects with the transfer provisions in the Namoya
Streaming Agreement, then the Namoya Purchaser will have no entitlement to
share in the proceeds of the Disposition of such Collateral (including
pursuant to Section 3.4(a)) except to satisfy the Priority Stream
Obligations due and owing to the Namoya Purchaser prior to such
Disposition and not assumed by the transferee of such
Collateral." |
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g. |
Section 3.4(a) of the CTA is deleted in its entirety and
replaced with the following: |
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(a) The Collateral Agent will, subject to applicable
law, apply the proceeds of any Disposition of any Collateral and the
proceeds of any insurance policy, including any title insurance policy, in
the following order of application and pursuant to wiring instructions as
specified in an Act of Instructing Debtholders: |
(i) FIRST, to the payment of all
amounts payable under this Agreement on account of the Collateral Agents direct
or indirect fees and any reasonable legal fees, costs and expenses or other
liabilities or debts of any kind incurred by the Collateral Agent or any
co-trustee or agent in connection with this Agreement or any other Collateral
Document;
(ii) SECOND, to the repayment of
Indebtedness or other Obligations, other than Secured Obligations, secured by a
Permitted Prior Lien on the Collateral sold or realized upon;
(iii) THIRD, to the Namoya Purchaser
for application to the payment of all outstanding Priority Stream Obligations;
(iv) FOURTH, to the respective
Priority Debt Representatives for application to the payment of all outstanding
Priority Lien Obligations (other than the Priority Stream Obligations) that are
then due and payable in such order as may be provided in the Priority Lien
Documents in an amount sufficient to pay in full in cash all outstanding
Priority Lien Debt (other than the Priority Stream Obligations) and all other
Priority Lien Obligations (other than the Priority Stream Obligations) that are
then due and payable (including all interest accrued thereon after the
commencement of any bankruptcy or other Insolvency Proceeding at the rate,
including any applicable post-default rate, specified in the Priority Lien
Documents, even if such interest is not enforceable, allowable or allowed as a
claim in such proceeding, and including the discharge or cash collateralization
(at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage
of the aggregate undrawn amount required for release of Liens under the terms of
the applicable Priority Lien Document) of all outstanding letters of credit and
bankers acceptances constituting Priority Lien Debt);
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(v) FIFTH, to the respective Parity
Debt Representatives for application to the payment of all outstanding Parity
Lien Obligations that are then due and payable in such order as may be provided
in the Parity Lien Documents in an amount sufficient to pay in full in cash all
outstanding Parity Lien Debt and all other Parity Lien Obligations that are then
due and payable (including all interest accrued thereon after the commencement
of any bankruptcy or other Insolvency Proceeding at the rate, including any
applicable post-default rate, specified in the Parity Lien Documents, even if
such interest is not enforceable, allowable or allowed as a claim in such
proceeding, and including the discharge or cash collateralization (at 102.5% of
the aggregate undrawn amount) of all outstanding letters of credit and bankers
acceptances constituting Parity Lien Debt); and
(vi) SIXTH, any surplus remaining
after the irrevocable and unconditional payment in full in cash of all of the
Secured Obligations and Obligations entitled to the benefit of such Collateral
will be paid to the Borrower or the other applicable Obligors, as the case may
be, or its successors or assigns, or as a court of competent jurisdiction may
direct.
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h. |
Section 3.4 of the CTA is hereby amended by adding the
following as subsection (c): |
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If any Priority Lien Secured Party other than the Namoya
Purchaser collects or receives any proceeds in respect of the Priority
Stream Obligations prior to the payment and satisfaction in full of the
Priority Stream Obligations and a Responsible Officer of such Priority
Debt Representative shall have received written notice, or shall have
actual knowledge, of the same prior to such Priority Debt Representatives
distribution of such proceeds, whether after the commencement of an
Insolvency Proceeding or otherwise, such Priority Lien Secured Party will
forthwith deliver the same to the Collateral Agent, for the account of the
Namoya Purchaser, in the form received, duly endorsed to the Collateral
Agent, for the account of the Namoya Purchaser to be applied in accordance
with clause (a) above. |
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Until so delivered, such proceeds will be held by such
Priority Lien Secured Party for the benefit of the Namoya Purchaser. This
Section 3.4(c) shall not apply to payments received by any holder of
Priority Lien Obligations if such payments are not proceeds of any
Disposition of any Collateral. |
3. |
Acknowledgement of Security Interest in Forward
Sale/Streaming Agreements |
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The parties hereto acknowledge that the FSA Purchasers
have granted a security interest in all of their right, title, estate and
interest in, to, under and in respect of the Forward Sale/Streaming
Agreements as general and continuing security for the payment and
performance of certain of their other obligations. The parties hereto
agree that upon a due enforcement of such security interest against a FSA
Purchaser by the applicable secured parties or their representative, the
security parties or their representative shall hold all of the applicable
FSA Purchasers right, title, estate and interest in, to, under and in
respect of the Forward Sale/Streaming Agreements and shall be afforded the
benefit of, and be deemed to have assumed, all of the rights and
obligations of the Forward Sale/Streaming Agreements under the Collateral
Documents, provided that such secured parties or their representative
execute(s) the requisite Priority Debt Sharing Confirmation or Parity Debt
Sharing Confirmation, as applicable. |
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4. |
Amendments to Priority Debt Sharing
Confirmations |
- 5 -
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The parties hereto acknowledge and agree that each
Priority Debt Sharing Confirmation in the Secured Debt Documents
(including, without limitation, the Securities Purchase Agreement dated
August 18, 2014 between Banro Corporation and the Buyers (as defined
therein)) or entered into in connection with a Secured Debt Document, is
hereby amended to provide that the Priority Stream Obligations shall be
paid in priority to the other Priority Lien Obligations in accordance with
Section 3.4(a) of this Agreement. |
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5. |
Amendments to Secured Debt Documents and Collateral
Documents |
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The parties hereto acknowledge and agree that all Secured
Debt Documents and Collateral Documents are deemed to be amended to the
extent required to reflect the amendments set forth in this First Amending
Agreement. |
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6. |
Further Steps |
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The Company and the Trustee are hereby authorized and
directed to take all such further steps as are necessary to give effect to
the amendments as set forth in this First Amending Agreement. |
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7. |
Incorporation into CTA |
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This First Amending Agreement shall be read and construed
as if forming a part of the CTA and the CTA shall be amended and revised
to the extent required to give effect to this First Amending
Agreement. |
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8. |
Ratification |
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The CTA, as amended by this First Amending Agreement, is
in all respects ratified and confirmed. |
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9. |
Governing Law |
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This First Amending Agreement shall be construed in
accordance with the laws of the Province of Ontario and shall be treated
in all respects as an Ontario contract. The parties hereby submit and
attorn to the jurisdiction of the courts of Ontario for all matters
related to this First Amending Agreement. |
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10. |
Counterparts |
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This First Amending Agreement may be executed in several
counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together shall constitute one and the same
instrument and notwithstanding their date of execution they shall be
deemed to be dated as of the date hereof. |
[signature page follows]
- 6 -
IN WITNESS WHEREOF the parties have executed this First
Amending Agreement as of the date first above written.
EQUITY FINANCIAL TRUST COMPANY
as Collateral Agent
Per:_________________________________________________
Name:
Title:
Per:_________________________________________________
Name:
Title:
EQUITY FINANCIAL TRUST COMPANY
as Indenture Trustee
Per:_________________________________________________
Name:
Title:
Per:_________________________________________________
Name:
Title:
BANRO CORPORATION
as
Borrower and Issuer
Per:_________________________________________________
Name:
Title:
BANRO CONGO MINING S.A.
as
Initial Guarantor
Per:_________________________________________________
Name:
Title:
(signature page to Amending Agreement)
KAMITUGA MINING S.A.
as
Initial Guarantor
Per:_________________________________________________
Name:
Title:
LUGUSHWA MINING S.A.
as
Initial Guarantor
Per:_________________________________________________
Name:
Title:
NAMOYA MINING S.A.
as
Initial Guarantor
Per:_________________________________________________
Name:
Title:
TWANGIZA MINING S.A.
as
Initial Guarantor
Per:_________________________________________________
Name:
Title:
ECOBANK DRC SARL
as Secured
Debt Representative
Per:_________________________________________________
Name:
Title:
Per:_________________________________________________
Name:
Title:
GRAMERCY FUNDS MANAGEMENT LLC
as Secured Debt Representative
Per:_________________________________________________
Name:
Title:
(signature page to Amending Agreement)
The Tabulation Agent and Payment Agent for the Solicitation
is:
Equity Financial Trust Company
By Overnight Delivery or Regular |
By Email: |
By Facsimile: |
Mail or Registered or Certified |
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Mail: |
tmxecorporateActions@tmx.com |
(416) 361-0470 |
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200 University Ave., Suite 300 |
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Toronto, ON M5H 4H1 |
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Canada |
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Attn: Corporate Actions |
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Any questions regarding the terms of the Solicitation may be
directed to the Solicitation Agent.
The Solicitation Agent for the Solicitation is:
CIBC World Markets Inc.
161 Bay Street, 6th Floor
Toronto, Ontario M5J
2S8
Canada
Attn: Sean Dixon
(416) 956-6978 (Call Collect)
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