As filed with the Securities and Exchange Commission on
December 11, 2015.
U.S. SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
Form F-10
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________________________________
B2Gold Corp.
(Exact name of Registrant as specified in its charter)
British Columbia, Canada |
1040 |
n/a |
(Province or other Jurisdiction of |
(Primary Standard Industrial
Classification |
(I.R.S. Employer Identification Number, if
|
Incorporation or Organization) |
Code Number) |
any) |
Suite 3100, Three Bentall Centre |
595 Burrard Street |
Vancouver, British Columbia, Canada, V7X 1J1
|
(604) 681-8371 |
(Address and telephone number of Registrants
principal executive offices) |
|
DL Services, Inc. |
701 Fifth Avenue, Suite 6100 |
Seattle, Washington 98104 |
(206) 903-8800 |
(Name, address (including zip code) and telephone
number (including area code) of agent for service in the United States)
|
___________________________________ |
|
With a copy to: |
Christopher L. Doerksen |
Dorsey & Whitney LLP |
701 Fifth Avenue |
Suite 6100 |
Seattle, Washington 98104 |
(206) 903-8800 |
___________________________________ |
|
Approximate date of commencement of proposed sale to
the public: |
From time to time after the effective date of this
Registration Statement. |
|
|
Province of British Columbia, Canada |
(Principal jurisdiction regulating this offering)
|
___________________________________ |
It is proposed that this filing shall become
effective (check appropriate box below): |
A. |
[ ] upon filing with the Commission, pursuant to Rule
467(a) (if in connection with an offering being made contemporaneously in
the United States and Canada). |
B. |
[X] at some future date (check appropriate box
below) |
|
1. |
[ ] pursuant to Rule 467(b) on ( ) at ( ) (designate a
time not sooner than seven calendar days after filing). |
|
2. |
[ ] pursuant to Rule 467(b) on ( ) at ( ) (designate a
time seven calendar days or sooner after filing) because the securities
regulatory authority in the review jurisdiction has issued a receipt or
notification of clearance on ( ). |
|
3. |
[ ] pursuant to Rule 467(b) as soon as practicable after
notification of the Commission by the Registrant or the Canadian
securities regulatory authority of the review jurisdiction that a receipt
or notification of clearance has been issued with respect
hereto. |
|
4. |
[X] after the filing of the next amendment to this Form
(if preliminary material is being filed). |
If any of the securities being
registered on this form are to be offered on a delayed or continuous basis
pursuant to the home jurisdictions shelf prospectus offering procedures, check
the following box. [X]
___________________________________
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be
registered |
Amount to be
registered(1) |
Proposed maximum aggregate
offering price(2)(3) |
Amount of registration fee |
Debt Securities Warrants
Subscription Receipts Units
Common Shares
|
Total |
U.S.$300,000,000 |
U.S.$300,000,000 |
U.S.$30,210 |
|
(1) |
There are being registered under this registration
statement such indeterminate number of debt securities,
warrants, subscription receipts, common shares and units of the Registrant as shall have
an aggregate initial offering price of U.S.$300,000,000. Any securities
registered by this registration statement may be sold separately or as
units with other securities registered under this registration statement.
The proposed maximum initial offering price per security will be
determined, from time to time, by the Registrant in connection with the
sale of the securities under this registration statement. |
|
|
|
|
(2) |
In United States dollars or the equivalent thereof in
Canadian dollars. |
|
|
|
|
(3) |
Estimated solely for the purpose of calculating the
amount of the registration fee pursuant to Rule 457 of the Securities Act
of 1933. |
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registration Statement shall become effective as provided in Rule 467 under the
Securities Act of 1933 or on such date as the Commission, acting pursuant to
Section 8(a) of the Act, may determine.
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR
PURCHASERS
I-1
Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Information has been incorporated by reference in this
preliminary short form base shelf prospectus from documents
filed with securities commissions or similar authorities in Canada.
Copies of the documents incorporated herein by reference
may be obtained on request, without charge, from the Corporate
Secretary of B2Gold Corp. at Suite 3100, Three Bentall Centre, 595
Burrard Street, Vancouver, British Columbia, Canada V7X 1J1, telephone (604)
681-8371 and are also available electronically at www.sedar.com.
PRELIMINARY SHORT FORM BASE SHELF PROSPECTUS
New Issue |
December 11, 2015 |
B2GOLD CORP.
US$300,000,000
Debt
Securities
Warrants
Subscription Receipts
Units
Common Shares
B2Gold Corp. (“B2Gold” or the “Company”) may offer and sell, from time to time, debt securities (“Debt Securities”), warrants to purchase common shares of the Company (“Warrants”), subscription receipts (“Subscription Receipts”) or common shares of the Company (“Common Shares”) or any combination of such securities (“Units”) (all of the foregoing collectively, the “Securities) up to an aggregate initial offering price of US$300,000,000 (or its equivalent in Canadian dollars) during the 25-month period that this short form base shelf prospectus (the “Prospectus”), including any amendments hereto, remains effective. Securities may be offered in amounts, at prices and on terms to be determined based on market conditions at the time of sale and set forth in an accompanying prospectus supplement (a “Prospectus Supplement”). In addition, Securities may be offered and issued in consideration for the acquisition of other businesses, assets or securities by us or one of our subsidiaries. The consideration for any such acquisition may consist of any of the Securities separately, a combination of Securities or any combination of among other things, Securities, cash and assumption of liabilities.
Investing in the Securities involves significant risks.
Prospective investors should carefully consider the risk factors described under
the heading Risk Factors and elsewhere in this Prospectus and in the documents
incorporated by reference in this Prospectus.
This offering is made by a Canadian issuer that is permitted
under a multijurisdictional disclosure system adopted by the United States to
prepare this Prospectus in accordance with Canadian disclosure requirements.
Prospective investors should be aware that such requirements are different from
those applicable to issuers in the United States. Financial statements
incorporated herein by reference have been prepared in accordance with
International Financial Reporting Standards, as issued by the International
Accounting Standards Board (IFRS), and thus may not be comparable to financial
statements of United States companies.
Prospective investors should be aware that the acquisition
of the Securities may have tax consequences both in the United States and in
Canada. Such consequences for investors who are resident in, or citizens of, the
United States or who are resident in Canada may not be described fully herein or
in any applicable Prospectus Supplement. Prospective investors should read the
tax discussion contained in the applicable Prospectus Supplement with respect to
a particular offering of Securities and consult their own tax advisors with
respect to their own particular circumstances.
The enforcement by investors of civil liabilities under the
U.S. federal securities laws may be affected adversely by the fact that the
Company is incorporated or organized under the laws of British Columbia, Canada,
that the majority of the Companys officers and directors and some or all of the
experts named in this Prospectus are residents of a country other than the
United States, and that a substantial portion of the assets of the Company and
said persons are located outside the United States.
Neither the United States Securities and Exchange Commission
(the SEC) nor any state securities regulator has approved or disapproved of
the Securities offered hereby, passed upon the accuracy or adequacy of this
Prospectus or determined if this Prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
No underwriter has been involved in the preparation of this
Prospectus or performed any review of the content of this Prospectus.
The specific terms of the Securities with respect to a
particular offering will be set out in the applicable Prospectus Supplement and
may include, where applicable (i) in the case of Common Shares, the number of
Common Shares offered, the offering price, whether the Common Shares are being
offered for cash, and any other terms specific to the Common Shares being
offered, (ii) in the case of Debt Securities, the specific designation, the
aggregate principal amount, the currency or the currency unit for which the Debt
Securities may be purchased, the maturity, the interest provisions, the
authorized denominations, the offering price, whether the Debt Securities are
being offered for cash, the covenants, the events of default, any terms for
redemption or retraction, any exchange or conversion rights attached to the Debt
Securities and any other terms specific to the Debt Securities being offered,
(iii) in the case of Warrants, the offering price, whether the Warrants are
being offered for cash, the designation, the number and the terms of the Common
Shares or Debt Securities purchasable upon exercise of the Warrants, any
procedures that will result in the adjustment of these numbers, the exercise
price, the dates and periods of exercise, the currency in which the Warrants are
issued and any other terms specific to the Warrants being offered, (iv) in the
case of Subscription Receipts, the number of Subscription Receipts being
offered, the offering price, whether the Subscription Receipts are being offered
for cash, the procedures for the exchange of the Subscription Receipts for
Common Shares, Debt Securities or Warrants, as the case may be, and any other
terms specific to the Subscription Receipts being offered, and (v) in the case
of Units, the designation, number and terms of the Common Shares, Warrants,
Subscription Receipts or Debt Securities comprising the Units. Where required by
statute, regulation or policy, and where Securities are offered in currencies
other than Canadian dollars, appropriate disclosure of foreign exchange rates
applicable to the Securities will be included in the Prospectus Supplement
describing the Securities.
This Prospectus does not qualify for issuance debt securities
in respect of which the payment of principal and/or interest may be determined,
in whole or in part, by reference to one or more underlying interests,
including, for example, an equity or debt security, or a statistical measure of
economic or financial performance (including, but not limited to, any currency,
consumer price or mortgage index, or the price or value of one or more
commodities, indices or other items, or any other item or formula, or any
combination or basket of the foregoing items). For greater certainty, this
Prospectus may qualify for issuance debt securities, including Debt Securities
convertible into other Securities of the Company, in respect of which the
payment of principal and/or interest may be determined, in whole or in part, by
reference to published rates of a central banking authority or one or more
financial institutions, such as a prime rate or bankers acceptance rate, or to
recognized market benchmark interest rates such as LIBOR, EURIBOR or a U.S.
federal funds rate.
All shelf information permitted under applicable laws to be
omitted from this Prospectus will be contained in one or more Prospectus
Supplements that will be delivered to purchasers together with this Prospectus.
Each Prospectus Supplement will be incorporated by reference into this
Prospectus for the purposes of securities legislation as of the date of the
Prospectus Supplement and only for the purposes of the distribution of the
Securities to which the Prospectus Supplement pertains.
This Prospectus constitutes a public offering of the Securities
only in those jurisdictions where they may be lawfully offered for sale and only
by persons permitted to sell the Securities in such jurisdictions. We may offer
and sell Securities to, or through, underwriters or dealers, directly to one or
more other purchasers, or through agents pursuant to exemptions from
registration or qualification under applicable securities laws. A Prospectus Supplement relating to
each issue of Securities will set forth the names of any underwriters, dealers
or agents involved in the offering and sale of the Securities and will set forth
the terms of the offering of the Securities, the method of distribution of the
Securities, including, to the extent applicable, the proceeds to us and any
fees, discounts, concessions or other compensation payable to the underwriters,
dealers or agents, and any other material terms of the plan of distribution.
ii
In connection with any offering of the Securities, other than
an at-the-market distribution (as defined under applicable Canadian securities
legislation) unless otherwise specified in a Prospectus Supplement, the
underwriters or agents may over-allot or effect transactions which stabilize or
maintain the market price of the Securities offered at a higher level than that
which might exist in the open market. Such transaction, if commenced, may be
interrupted or discontinued at any time. See Plan of Distribution.
No underwriter or dealer involved in an at-the-market
distribution under this Prospectus, no affiliate of such an underwriter or
dealer and no person or company acting jointly or in concert with such an
underwriter or dealer will over-allot securities in connection with such
distribution or effect any other transactions that are intended to stabilize or
maintain the market price of the Securities.
Our outstanding Common Shares are listed and posted for trading
on the Toronto Stock Exchange (the TSX) under the symbol BTO and on
the NYSE MKT LLC (NYSE MKT) under the symbol BTG. On December 10,
2015, the last trading day of the Common Shares prior to the date of this
Prospectus, the closing price of the Common Shares on the TSX and NYSE MKT was
C$1.60 and US$1.17, respectively. Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities, the Warrants, the
Subscription Receipts and the Units will not be listed on any securities
exchange. There is no market through which these Securities may be sold and
purchasers may not be able to resell these Securities purchased under this
Prospectus. This may affect the pricing of these Securities in the secondary
market, the transparency and availability of trading prices, the liquidity of
these Securities, and the extent of issuer regulation.
Our head office is located at Suite 3100, Three Bentall Centre,
595 Burrard Street, Vancouver, British Columbia, V7X 1J1. Our registered and
records office is located at 1600 925 West Georgia Street, Vancouver, British
Columbia, V6C 3L2.
Mr. Rayment, Mr. Korpan, Mr. Mtshisi and Mr. Connelly all being
directors of the Company reside outside Canada. Mr. Rayment, Mr. Korpan, Mr.
Mtshisi and Mr. Connelly have appointed B2Gold Corp., Suite 3100, Three Bentall
Centre, 595 Burrard Street, Vancouver, British Columbia, Canada V7X 1J1, as
their agent for service of process in Canada. Prospective investors are advised
that it may not be possible for investors to enforce judgments obtained in
Canada against Mr. Rayment, Mr. Korpan, Mr. Mtshisi and Mr. Connelly, even
though they have appointed an agent for service of process.
iii
TABLE OF CONTENTS
You should rely only on the information contained in or
incorporated by reference in this Prospectus and any applicable Prospectus
Supplement in connection with an investment in Securities. We have not
authorized anyone to provide you with different information. We are not making
an offer of the Securities in any jurisdiction where such offer is not
permitted. You should assume that the information appearing in this Prospectus
or any Prospectus Supplement is accurate only as of the date on the front of
those documents and that information contained in any document incorporated by
reference is accurate only as of the date of that document unless specified
otherwise. Our business, financial condition, results of operations and
prospects may have changed since those dates.
In this Prospectus and any Prospectus Supplement, unless the
context otherwise requires, the terms we, our, us, the Company and
B2Gold refer to B2Gold Corp., and unless the context otherwise requires, our
direct and indirect subsidiaries.
Market data and certain industry forecasts used in this
Prospectus or any applicable Prospectus Supplement and the documents
incorporated by reference herein or therein were obtained from market research,
publicly available information and industry publications. We believe that these
sources are generally reliable, but the accuracy and completeness of the
information is not guaranteed. We have not independently verified this
information and do not make any representation as to the accuracy of this
information.
iv
CAUTIONARY NOTE TO UNITED STATES INVESTORS
We are permitted under a multi-jurisdictional disclosure system
adopted by the securities regulatory authorities in Canada and the United States
to prepare this Prospectus, including the documents incorporated by reference
and any Prospectus Supplement, in accordance with the requirements of Canadian
securities laws, which differ from the requirements of United States securities
laws. All mineral resource and reserve estimates included in this Prospectus,
including the documents incorporated by reference, have been prepared in
accordance with National Instrument 43-101 Standards of Disclosure for
Mineral Projects (NI 43-101). NI 43-101 is a rule developed by the
Canadian Securities Administrators that establishes standards for all public
disclosure an issuer makes of scientific and technical information concerning
mineral projects. These standards differ significantly from the mineral reserve
disclosure requirements of the SEC set out in Industry Guide 7. Consequently,
mineral reserve and mineral resource information included and incorporated by
reference in this Prospectus and any Prospectus Supplement is not comparable to
similar information that would generally be disclosed by U.S. companies in
accordance with the rules of the SEC.
In particular, the SECs Industry Guide 7 applies different
standards in order to classify mineralization as a reserve. As a result, the
definitions of proven and probable mineral reserves used in NI 43-101 differ
from the definitions in SEC Industry Guide 7. Under SEC standards,
mineralization may not be classified as a reserve unless the determination has
been made that the mineralization could be economically and legally produced or
extracted at the time the reserve determination is made. Among other things, all
necessary permits would be required to be in hand or issuance imminent in order
to classify mineralized material as reserves under the SEC standards.
Accordingly, mineral reserve estimates included and incorporated by reference in
this Prospectus and any Prospectus Supplement may not qualify as reserves
under SEC standards.
In addition, the information included and incorporated by
reference in this Prospectus uses the terms mineral resources, measured
mineral resources, indicated mineral resources and inferred mineral
resources to comply with the reporting standards in Canada. The SECs Industry
Guide 7 does not recognize mineral resources and U.S. companies are generally
not permitted to disclose mineral resources in documents they file with the SEC.
Investors are specifically cautioned not to assume that any part or all of the
mineral deposits in these categories will ever be converted into SEC defined
mineral reserves. Further, inferred mineral resources have a great amount of
uncertainty as to their existence and as to whether they can be mined legally or
economically. Therefore, investors are also cautioned not to assume that all or
any part of an inferred mineral resource exists. In accordance with Canadian
rules, estimates of inferred mineral resources cannot form the basis of
feasibility or, except in limited circumstances, other economic studies. It
cannot be assumed that all or any part of measured mineral resources,
indicated mineral resources or inferred mineral resources will ever be
upgraded to a higher category or mineral resources or that mineral resources
will be classified as mineral reserves. Investors are cautioned not to assume
that any part of the reported measured mineral resources, indicated mineral
resources or inferred mineral resources included and incorporated by
reference in this Prospectus and any Prospectus Supplement is economically or
legally mineable. Disclosure of contained ounces in a resource is permitted
under NI 43-101; however, the SEC normally only permits issuers to report
mineralization that does not constitute reserves by SEC standards as in-place
tonnage and grade without reference to unit measures. In addition, the documents
incorporated by reference in this Prospectus include information regarding
adjacent or nearby properties on which we have no right to mine. The SEC does
not normally allow U.S. companies to include such information in their filings
with the SEC. For the above reasons, information included and incorporated by
reference in this Prospectus and any Prospectus Supplement that describes our
mineral reserve and resource estimates or that describes the results of
pre-feasibility or other studies is not comparable to similar information made
public by U.S. companies subject to the reporting and disclosure requirements of
the SEC.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The information included and incorporated by reference in this
Prospectus includes certain forward-looking information and forward-looking
statements (collectively forward-looking statements) within the
meaning of applicable Canadian and United States securities legislation,
including projections of future financial and operational performance;
statements with respect to future events or future performance, production
estimates, anticipated operating and production costs and revenue, estimates of
capital expenditures; recovery and grade estimates; anticipated exploration,
development, construction, production, permitting and other activities on the
Companys properties, including finalizing the Mining Convention and the
ownership of the entity that will hold the Fekola project with the Government of
Mali, the potential development and potential production from the Fekola project
and the anticipated arrival of the permanent camp there; the life of mine at the
Fekola project; estimated financial returns from the Fekola project; completion
of a mining study for the Otjikoto mine as well as a new geologic model for the
Otjikoto Pit and the Wolfshag zone, updating the Kiaka feasibility study; the
projections included in existing technical reports, economic assessments and
feasibility studies, including the feasibility study for the Fekola project; the
potential for expansion of mineral resources and mineral reserves, including at
the Masbate mine; the potential for expansion of production capacity, including
the cost reduction and continued ramp up, improvements and expansion of gold production at the Otjikoto
mine and development of the adjacent Wolfshag zone, potential expansion options
for the Masbate mine, the completion of permitting in respect of the Jabali
Antenna Pit, production from the Jabali Antenna Pit and increased production at
La Libertad, and the potential to extend the mine life of the La Libertad and
Limon mines; projected capital investments and exploration; and the adequacy of
capital, financing needs and the potential availability of and potential for
receiving further commitments under our new revolving credit facility; the
potential availability of flexible financing arrangements, including our new
revolving credit facility; the availability of the accordion feature under our
new revolving credit facility and the potential increase in available funds
under it; the repayment of our previous credit facility; and whether our new
revolving credit facility will provide sufficient funds for the construction of
the Fekola project and to meet our objective of having $100 million on hand.
Estimates of mineral resources and mineral reserves are also forward looking
statements because they constitute projections, based on certain estimates and
assumptions, regarding the amount of minerals that may be encountered in the
future and/or the anticipated economics of production, should a production
decision be made. All statements included and incorporated by reference herein
that address events or developments that we expect to occur in the future are
forward-looking statements. Forward-looking statements are statements that are
not historical facts and are generally, although not always, identified by words
such as expect, plan, anticipate, project, target, potential,
schedule, forecast, budget, estimate, intend or believe and similar
expressions or their negative connotations, or that events or conditions will,
would, may, could, should or might occur. All such forward-looking
statements are based on the opinions and estimates of management as of the date
such statements are made. Forward-looking statements necessarily involve
assumptions, risks and uncertainties, certain of which are beyond our control,
including risks associated with the volatility of metal prices; risks and
dangers inherent in exploration, development and mining activities; risks of not
achieving production or cost estimates; uncertainty of mineral reserve and
mineral resource estimates; material differences for reporting mineralized
material between United States reporting standards and the Canadian standards;
financing risks; risks related to hedging activities and ore purchase
commitments; the ability to obtain and maintain any necessary permits, consents
or authorizations required for mining activities; inability to comply with
Philippines regulations related to ownership of natural resources and operation,
management and control of our business; risks related to environmental
regulations or hazards and compliance with complex regulations associated with
mining activities; the ability to replace mineral reserves and identify
acquisition opportunities or complete desirable acquisitions; the failure to
integrate business and assets that we have acquired or may acquire in the
future; unknown liabilities of companies that we have acquired; fluctuations in
exchange rates; availability of financing and financing risks; risks related to
operations in foreign countries and compliance with foreign laws including
changes in such laws, risks related to remote operations and the availability of
adequate infrastructure, fluctuations in price and availability of energy and
other inputs necessary for mining operations; shortages or cost increases in
necessary equipment, supplies and labour; regulatory, political and country
risks including the risk of terrorist activity; climate change risks; volatility
of global financial conditions; disruptions arising from conflicts with small
scale miners in certain countries; risks related to reliance upon contractors,
third parties and joint venture partners; challenges to title or surface rights;
dependence on key personnel; risks associated with conflicts of interest among
our directors and officers; the risk of an uninsurable or uninsured loss;
litigation risk; taxation, including changes in tax laws and interpretation of
tax laws; difficulty in achieving and maintaining the adequacy of internal
control over financial reporting as required by the Sarbanes-Oxley Act; risks
related to the ongoing epidemic of the Ebola virus disease in West Africa; and
community support for our operations including risks related to strikes and the
halting of such operations, from time to time, as well as other factors
identified and as described in more detail under the heading Risk Factors in
our most recent annual information form and this Prospectus and in the documents
incorporated by reference herein. The list is not exhaustive of the factors that
may affect our forward-looking statements. There can be no assurance that such
statements will prove to be accurate, and actual results, performance or
achievements could differ materially from those expressed in, or implied by,
these forward-looking statements. Accordingly, no assurance can be given that
any events anticipated by the forward-looking statements will transpire or
occur, or if any of them do, what benefits or liabilities we will derive
therefrom. Our forward looking statements reflect current expectations regarding
future events and operating performance and speak only as of the date hereof and
we do not assume any obligation to update forward-looking statements if
circumstances or management's beliefs, expectations or opinions should change
other than as required by applicable law. For the reasons set forth above, undue
reliance should not be placed on forward-looking statements.
PRESENTATION OF FINANCIAL INFORMATION
The financial statements included or incorporated by reference
in this Prospectus or any Prospectus Supplement are presented in United States
dollars and have been prepared in accordance with IFRS as issued by the
International Accounting Standards Board, including IAS 34, Interim Financial
Reporting, as appropriate.
CURRENCY PRESENTATION AND EXCHANGE RATE INFORMATION
All dollar amounts in this Prospectus and any Prospectus
Supplement are or will be in United States dollars, unless otherwise indicated.
All references to $ or US$ refer to U.S. dollars and C$ refers to Canadian
dollars. On December 10, 2015, the noon spot rate for Canadian dollars in terms of the United States
dollar, as quoted by the Bank of Canada, was US$1.00=C$ 1.36 or C$1.00=US$ 0.74.
2
The following table sets forth, for each period indicated, the
exchange rates of the Canadian dollar to the U.S. dollar for the end of period
and the high, low and average (based on the exchange rate on the last day of
each month during such period) exchange rates for such period (such rates, which
are expressed in Canadian dollars are based on the noon buying rate for U.S.
dollars reported by the Bank of Canada).
|
|
|
Year
ended |
|
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|
|
December 31, |
|
|
|
|
2012 |
|
|
2013 |
|
|
2014 |
|
|
Rate at the end of period |
$ |
0.9949 |
|
$ |
1.0636 |
|
$ |
1.1601 |
|
|
Average rate during period |
$ |
0.9996 |
|
$ |
1.0299 |
|
$ |
1.1045 |
|
|
Highest rate during period
|
$ |
1.0418 |
|
$ |
1.0697 |
|
$ |
1.1643 |
|
|
Lowest rate during period |
$ |
0.9710 |
|
$ |
0.9839 |
|
$ |
1.0614 |
|
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference in this
Prospectus from documents filed with securities commissions or similar
authorities in Canada and filed with, or furnished to, the SEC. Copies of
the documents incorporated herein by reference may be obtained on request
without charge from the Corporate Secretary of the Company at Suite 3100, Three
Bentall Centre, 595 Burrard Street, Vancouver, British Columbia, Canada V7X 1J1,
telephone: (604) 681-8371. These documents are also available through the
internet on SEDAR, which can be accessed online at www.sedar.com.
The following documents of the Company filed with the
securities commissions or similar authorities in Canada are specifically
incorporated by reference in, and form an integral part of, this Prospectus:
|
(a) |
annual information form, dated March 27, 2015, for the
year ended December 31, 2014; |
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(b) |
audited consolidated financial statements for the years
ended December 31, 2014 and 2013, together with the notes thereto and the
auditors report thereon; |
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(c) |
managements discussion and analysis of the financial
position and results of operations for the year ended December 31,
2014; |
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(d) |
management information circular, dated May 8, 2015,
prepared in connection with our annual general and special meeting of
shareholders held on June 12, 2015; |
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|
(e) |
unaudited condensed interim consolidated financial
statements for the three and nine months ended September 30, 2015,
together with the notes thereto; |
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(f) |
managements discussion and analysis of the financial
position and results of operations for the three and nine months ended
September 30, 2015; |
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(g) |
press release dated May 20, 2015, relating to the Company
securing a new revolving credit facility; and |
|
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(h) |
press release dated June 11, 2015, relating to the
results of the optimized feasibility study for the Fekola project and the
closing of the Companys new revolving credit
facility. |
Any document of the types referred to in the preceding
paragraph (excluding press releases and confidential material change reports) or
of any other type required to be incorporated by reference into a short form
prospectus pursuant to National Instrument 44-101 Short Form Prospectus
Distributions that are filed by us with a securities commission or similar
authority in Canada after the date of this Prospectus and prior to the
termination of the offering under any Prospectus Supplement shall be deemed to
be incorporated by reference in this Prospectus. In addition, any document filed
by us with the SEC or furnished to the SEC on Form 6-K or otherwise after the date of this Prospectus shall be deemed
to be incorporated by reference into this Prospectus if, and to the extent, so
provided.
3
Any statement contained in this Prospectus or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. The modifying or superseding statement need not state
that it has modified or superseded a prior statement or include any other
information set forth in the document it modifies or supersedes. The making of a
modifying or superseding statement shall not be deemed an admission for any
purposes that the modified or superseded statement, when made, constituted a
misrepresentation, an untrue statement of a material fact or an omission to
state a material fact that is required to be stated or that is necessary to make
a statement not misleading in light of the circumstances in which it was made.
Any statement so modified or superseded shall not constitute a part of this
Prospectus, except as so modified or superseded.
A Prospectus Supplement containing the specific terms of an
offering of Securities will be delivered to purchasers of such Securities
together with this Prospectus and will be deemed to be incorporated by reference
into this Prospectus as of the date of such Prospectus Supplement, but only for
the purposes of the offering of Securities covered by that Prospectus
Supplement.
Upon a new annual information form and related annual financial
statements being filed by us with, and where required, accepted by, the
applicable securities regulatory authority during the currency of this
Prospectus, the previous annual information form, the previous annual financial
statements and all interim financial statements, material change reports and
information circulars and all Prospectus Supplements filed prior to the
commencement of our financial year in which a new annual information form is
filed shall be deemed no longer to be incorporated into this Prospectus for
purposes of future offers and sales of Securities hereunder.
AVAILABLE INFORMATION
We have filed with the SEC a registration statement on Form
F-10 relating to the Securities. This Prospectus, which constitutes a part of
the registration statement, does not contain all of the information contained in
the registration statement, certain items of which are contained in the exhibits
to the registration statement as permitted by the rules and regulations of the
SEC. Statements included or incorporated by reference in this Prospectus about
the contents of any contract, agreement or other documents referred to are not
necessarily complete, and in each instance you should refer to the exhibits for
a more complete description of the matter involved. Each such statement is
qualified in its entirety by such reference.
We are subject to the information requirements of the United
States Securities Exchange Act of 1934 as amended (the Exchange
Act), and applicable Canadian securities legislation, and in accordance
therewith file reports and other information with the SEC and with the
securities regulators in Canada. Under a multi-jurisdictional disclosure system
adopted by the United States, documents and other information that we file with
the SEC may be prepared in accordance with the disclosure requirements of
Canada, which are different from those of the United States. As a foreign
private issuer, we are exempt from the rules under the Exchange Act prescribing
the furnishing and content of proxy statements, and our officers, directors and
principal shareholders are exempt from the reporting and short-swing profit
recovery provisions contained in Section 16 of the Exchange Act. In addition, we
are not required to publish financial statements as promptly as U.S. companies.
You may read any document that we have filed with the SEC at
the SECs public reference room in Washington, D.C. You may also obtain copies
of those documents from the public reference room of the SEC at 100 F Street,
N.E., Washington, D.C. 20549 by paying a fee. 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 rooms. You may read and download the documents we
have filed with the SECs Electronic Data Gathering and Retrieval System at
www.sec.gov. You may read and download any public document that we have filed
with the Canadian securities regulatory authorities under our corporate profile
on the SEDAR website at www.sedar.com.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been or will be filed with the SEC
as part of the registration statement of which this Prospectus forms a part: (i)
the documents referred to under the heading Documents Incorporated by
Reference; (ii) consents of auditors, engineers and geologists; (iii) powers of
attorney from certain directors and officers of the Company; and (iv) the form
of Indenture (as defined below). A copy of the form of warrant indenture,
subscription receipt agreement or statement of eligibility of trustee on Form T-1, as applicable, will be filed by post-effective
amendment or by incorporation by reference to documents filed or furnished with
the SEC under the Exchange Act.
4
THE COMPANY
We are a Vancouver-based gold producer with four operating
mines (two mines in Nicaragua, one mine in the Philippines and one mine in
Namibia) and one mine under construction in Mali. In addition, the Company has a
portfolio of other evaluation and exploration projects in several countries
including Mali, Colombia, Burkina Faso and Nicaragua. The Company currently
operates the La Libertad mine and the Limon mine in Nicaragua, the Masbate mine
in the Philippines and the Otjikoto mine in Namibia.
More detailed information regarding the business of the
Company, its operations and its assets and properties can be found in our annual
information form and other documents which are incorporated herein by reference.
See Documents Incorporated by Reference.
MANAGEMENT AND BOARD OF DIRECTORS
The following is a brief description of the principal business
activities and experience of our senior management and directors:
Clive Johnson
Clive Johnson has served as a Director and the President of
B2Gold since December 2006 and Chief Executive Officer since March 2007. Mr.
Johnson oversees our long-term strategy and development as well as the
day-to-day activities of B2Gold. Previously, Mr. Johnson was involved with Bema
Gold Corporation (Bema) and its predecessor companies since 1977. Mr.
Johnson was appointed the President and Chief Executive Officer of Bema after it
was created by the amalgamation of three Bema group companies in 1988. He was
the driving force in Bemas transition from a junior exploration company to an
international intermediate gold producer. Mr. Johnson is currently a director of
Uracan Resources Ltd.
Roger Richer
Roger Richer has served as our Executive Vice President,
General Counsel since March 2007 and our Secretary since December 2006. Mr.
Richer manages the legal affairs, corporate records and corporate governance of
B2Gold. Mr. Richer has over 30 years of experience in mining law, corporate
finance and international business transactions and practices. Mr. Richer was
with Bema Gold from its inception in 1988 until 2007. He has a Bachelor of Arts
and a Bachelor of Law degree from the University of Victoria.
Michael Cinnamond
Michael Cinnamond has served as our Senior Vice President of
Finance and Chief Financial Officer since April 1, 2014. Mr. Cinnamond oversees
the financial reporting, cash management and tax planning of B2Gold as well as
financial compliance and reporting to the regulatory authorities. Prior to
joining us, Mr. Cinnamond was an audit partner at PricewaterhouseCoopers LLP
where he was the BC Resources Leader for the Mining, Forestry and Energy and
Utilities practices. Mr. Cinnamond has 16 years of experience in the mining
industry sector. Mr. Cinnamond holds an LL.B designation from the University of
Exeter.
Tom Garagan
Tom Garagan has served as our Senior Vice President of
Exploration since March 2007. Mr. Garagan is responsible for all aspects of our
exploration, including technical review of new acquisitions. Mr. Garagan is a
geologist with over 30 years of experience. Mr. Garagan was with Bema from 1991
to 2007 and was appointed Vice President of Exploration in 1996. He has worked
in North and South America, East and West Africa and Russia. He was instrumental
in several discoveries, including the Cerro Casale and Kupol deposits. Mr.
Garagan currently serves as a director of Uracan Resources Ltd. Mr. Garagan has
a Bachelor of Science (Honours) degree in geology from the University of Ottawa.
Dennis Stansbury
Dennis Stansbury has served as our Senior Vice President of
Engineering and Project Evaluations (and prior to that our Senior Vice President
of Development and Production) since March 2007. Mr. Stansbury is a mining
engineer with over 35 years of engineering, construction, production and management experience
at surface and underground mines in ten different countries. After working for a
number of gold mining companies in South America and the United States, he
joined Bema as Vice President South America in 1994 and was appointed Vice
President of Development and Production in 1996. Mr. Stansbury has a Bachelor of
Science degree in mining engineering from Montana College of Mineral Science and
Technology.
5
Robert Cross
Robert Cross was appointed to our board of directors and as
Chairman of the board in October 2007. Mr. Cross has over 25 years of experience
as a financier in the mining and oil & gas sectors. Mr. Cross is a
co-founder, director and Non-Executive Chairman of Bankers Petroleum Ltd., and a
co-founder, director and Chairman of Petrodorado Energy Ltd., and until October
2007, was the Non-Executive Chairman of Northern Orion Resources Inc. Mr. Cross
also serves as director of BNK Petroleum Inc. and Petro-Victory Energy Corp. Mr.
Cross served as Chairman and Chief Executive Officer of Yorkton Securities Inc.
between 1996 and 1998, a director of LNG Energy Ltd. from 2007 to 2011, and a
director of Athabasca Potash Inc. from 2009 to 2010. He also served as an
Investment Banking Partner with Gordon Capital Corporation in Toronto from 1987
to 1994. Mr. Cross holds a degree in Engineering from the University of Waterloo
and received his MBA from Harvard Business School in 1987.
Robert Gayton
Dr. Robert Gayton was appointed to our board of directors in
October 2007. Dr. Gayton is a Chartered Accountant and has acted as a consultant
to various public companies since 1990. He was the Chief Financial Officer of
Western Silver Corporation from 1995 to 2004 and served as a director of Western
Silver Corporation from 2004 to 2006. From 2003 to 2007, Dr. Gayton served as a
director of Bema. Dr. Gayton was Vice President of Finance of Doublestar
Resources Ltd. from 2003 to 2006 and a director from 1999 to 2007. He was a
director of Northern Orion Resources Inc. from 2004 to 2007, LNG Energy Ltd.
from 2011 to 2012, Palo Duro Energy Inc. from 2007 to 2012, Northisle Copper and
Gold Inc. from 2011 to 2012, Copper North Mining Corp. from 2011 to 2012,
Quaterra Resources Inc. from 1997 to 2012, Intrinsyc Software International,
Inc. from 1992 to 2010, and IMN Resources Inc. from 2008 to 2009. Each of these
companies was subsequently acquired by way of takeover. Dr. Gayton is currently
a director and the chair or a member of the audit and/or other committees of
Nevsun Resources Ltd., Amerigo Resources Ltd., Eastern Platinum Ltd. and Western
Copper and Gold Corporation.
Jerry Korpan
Jerry Korpan was appointed to our board of directors in
November 2007. Mr. Korpan served as Managing Director of Yorkton Securities UK
until 1999 and a director of Bema from 2002 to 2007. Until 2011, he was the
Executive Director of Emergis Capital S.A., a company based in Antwerp, Belgium.
Currently, Mr. Korpan serves as a director of Mitra Energy Limited, an
independent oil company operating in South East Asia, and Midas Gold
Corporation.
Barry Rayment
Dr. Barry Rayment was appointed to our board of directors in
October 2007. Dr. Rayment is a mining geologist with 40 years of experience in
base and precious metal exploration and development. Between 1990 and 1993, he
served as the President of Bema and also served as a director of Bema from 1988
to 2007. Dr. Rayment served as President of Mining Assets Corporation, a private
company that provides consulting services to the mining industry between 1993
and 2010. He is currently a director of Golden Predator Mining Corp. Dr. Rayment
was a director of EMC Metals Corp. between 2008 and 2009. Dr. Rayment obtained
his Ph.D. in Mining Geology at the Royal School of Mines, London.
Bongani Mtshisi
Bongani Mtshisi was appointed to our board of directors in
December 2011, following B2Golds acquisition of Auryx Gold Corp.
(Auryx) in 2011. Mr. Mtshisi is a Mining Engineer by training with more
than 12 years of experience working in key commodity sectors such as platinum,
gold, diamond, nickel and copper (Anglo American Platinum Limited, Debeers/HUF
joint venture and Sub Nigel Gold Mining Company). Mr. Mtshisi is currently the
CEO of BSC Resources Ltd., a company that is involved in the exploration and
development of copper and nickel commodities in South Africa. Mr. Mtshisi was
also a founder and Chairman of Auryx. Mr. Mtshisi has a National diploma in
Metalliferous Mining from Damelin College and a National Certificate in Project
Management from The Technikon Witwatersrand, both in South Africa.
6
Kevin Bullock
Kevin Bullock was appointed to our board of directors in
December 2013, following our acquisition of Volta Resources Inc. Mr. Bullock is
a mining engineer with over 25 years of experience at senior levels in mining
exploration, mine development and mine operations. Prior to joining our board,
Mr. Bullock was the President and CEO of Volta Resources Inc. and its
predecessor company, Goldcrest Resources Ltd. since its inception in 2002. Prior
to Volta and Goldcrest Resources Ltd., Mr. Bullock was Vice President Operations
for Kirkland Lake Gold Ltd. and was instrumental in the reopening of its Macassa
Gold Mine in Kirkland Lake, Ontario. Mr. Bullock is currently a director of
Metallum Resources, New Millenium Iron Corp. and Anaconda Mining Inc.
Mark Connelly
Mark Connelly was appointed to our board of directors in
October 2014, following our acquisition of Papillon. Prior to joining our board,
Mr. Connelly was Managing Director and CEO of Papillon. With over 25 years of
experience in the mining industry, Mr. Connelly held senior executive positions
with Adamus Resources Limited, Newmont Mining Corporation and Inmet Mining
Corporation prior to Papillon. Mr. Connelly has extensive experience with the
development, construction and operation of mining projects for a variety of
commodities, including gold, base metals and other resources in West Africa,
Australia, North America and Europe. Mr. Connelly is currently a director of
West African Resources Limited.
RISK FACTORS
An investment in our Securities involves risks. In addition to
the risk factors set forth below, you should carefully consider the risks
described in the sections entitled Risk Factors in any Prospectus Supplement
and those set forth in documents incorporated by reference in this Prospectus
and any applicable Prospectus Supplement, as well as other information in this
Prospectus and any applicable Prospectus Supplement, before purchasing any of
our Securities. Each of the risks described herein and in these sections and
documents could materially and adversely affect our business, financial
condition, results of operations and prospects, cause actual events to differ
materially from those described in forward looking statements and information
relating to the Company and could result in a loss of your investment.
Additional risks and uncertainties not known to us or that we currently deem
immaterial may also impair our business, financial condition, results of
operations and prospects. See Documents Incorporated by Reference.
There is an absence of a public market for certain of the
Securities
There is no public market for the Debt Securities, Warrants,
Subscription Receipts or Units and, unless otherwise specified in the applicable
Prospectus Supplement, we do not intend to apply for listing of the Debt
Securities, Warrants, Subscription Receipts or Units on any securities
exchanges. If the Debt Securities, Warrants, Subscription Receipts or Units are
traded after their initial issue, they may trade at a discount from their
initial offering prices depending on prevailing interest rates (as applicable),
the market for similar securities and other factors, including general economic
conditions and our financial condition. There can be no assurance as to the
liquidity of the trading market for the Debt Securities, Warrants, Subscription
Receipts or Units, or that a trading market for these securities will develop.
The Debt Securities will be structurally subordinated to any
indebtedness of our subsidiaries
We carry on our business through corporate subsidiaries, and
the majority of our assets are held in corporate subsidiaries. Our results of
operations and ability to service indebtedness, including the Debt Securities,
are dependent upon the results of operations of these subsidiaries and the
payment of funds by these subsidiaries to us in the form of loans, dividends or
otherwise. Our subsidiaries will not have an obligation to pay amounts due
pursuant to any debt securities or to make any funds available for payment on
debt securities, whether by dividends, interest, loans, advances or other
payments. In addition, the payment of dividends and the making of loans,
advances and other payments to us by our subsidiaries may be subject to
statutory or contractual restrictions. The Indenture (as defined below) does not
limit our ability or the ability of our subsidiaries to incur indebtedness. Such
indebtedness of our subsidiaries would be structurally senior to the Debt
Securities. In the event of the liquidation of any subsidiary, the assets of the
subsidiary would be used first to repay the obligations of the subsidiary,
including indebtedness and trade payables, prior to being used by us to pay our
indebtedness, including any Debt Securities.
7
Changes in interest rates may cause the market price or
value of the Debt Securities to decline
Prevailing interest rates will affect the market price or value
of the Debt Securities. The market price or value of the Debt Securities may
decline as prevailing interest rates for comparable debt instruments rise, and
increase as prevailing interest rates for comparable debt instruments
decline.
Fluctuations in foreign currency markets may cause the value
of the Debt Securities to decline
Debt Securities denominated or payable in foreign currencies
may entail significant risk. These risks include, without limitation, the
possibility of significant fluctuations in the foreign currency markets, the
imposition or modification of foreign exchange controls and potential liquidity
in the secondary market. These risks will vary depending upon the currency or
currencies involved and will be more fully described in the applicable
Prospectus Supplement.
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net
proceeds from the sale of Securities will be used for general corporate
purposes, including funding ongoing operations and/or working capital
requirements, to repay indebtedness outstanding from time to time, discretionary
capital programs and potential future acquisitions. Each Prospectus Supplement
will contain specific information concerning the use of proceeds from that sale
of Securities.
All expenses relating to an offering of Securities and any
compensation paid to underwriters, dealers or agents, as the case may be, will
be paid out of the proceeds from the sale of Securities, unless otherwise stated
in the applicable Prospectus Supplement.
EARNINGS COVERAGE RATIO
Earnings coverage ratios will be provided as required in the
applicable Prospectus Supplement with respect to the issuance of Debt Securities
pursuant to this Prospectus.
CONSOLIDATED CAPITALIZATION
Since the date of the unaudited condensed interim consolidated
financial statements of the Company as at and for the nine months ended
September 30, 2015 which are incorporated by reference in this Prospectus, the
only material change to the share and loan capital of the Company on a
consolidated basis, was the drawdown of US$50 million under the Companys new
US$350 million revolving credit facility (the Credit Facility).
DESCRIPTION OF EXISTING INDEBTEDNESS
We entered into the Credit Facility with a syndicate of
international banks pursuant to a credit agreement made as of May 20, 2015. The
Credit Facility also allows for an accordion feature whereby upon receipt of
additional binding commitments, the facility may be increased to US$450 million
any time prior to the maturity date. HSBC, as sole lead arranger and sole
bookrunner, is the administrative agent. The syndicate includes The Bank of Nova
Scotia, Société Générale and ING Bank N.V, as mandated lead arrangers. Proceeds
from the Credit Facility were used to repay our previous US$200 million
revolving credit facility and for general corporate purposes. The Credit
Facility bears interest on a sliding scale of between Libor plus 2.25% to 3.25%
based on our consolidated net leverage ratio. Commitment fees for the undrawn
portion of the facility will also be on a similar sliding scale basis of between
0.5% and 0.925% . The term for the Credit Facility is four years, maturing on
May 20, 2019, except that it shall become due on July 1, 2018 in the event that
our 3.25% convertible senior subordinated notes (the Convertible Notes)
due on October 1, 2018 remain outstanding or the maturity date of the
Convertible Notes has not been extended to at least 90 days after May 20, 2019.
Upon closing of the Credit Facility, an initial drawdown of US$150 million was
made which was used to repay the cumulative amount drawn under our previous
credit facility. A subsequent drawdown of US$50 million was made for general
corporate purposes.
We have outstanding as of December 10, 2015, US$258.75 million
Convertible Notes. Proceeds from the sale of the Convertible Notes were for
general corporate purposes. The Convertible Notes bear interest at 3.25% payable
semi-annually in arrears on April 1 and October 1 of each year, beginning on
April 1, 2014, and mature on October 1, 2018, unless earlier redeemed,
repurchased or converted. The Convertible Notes are convertible by holders into
our Common Shares, based on an initial conversion rate of 254.2912 Common Shares
per US$1,000 principal amount.
8
PLAN OF DISTRIBUTION
We may sell the Securities, separately or together: (a) to one
or more underwriters or dealers; (b) through one or more agents; or (c) directly
to one or more other purchasers. Each Prospectus Supplement will set forth the
terms of the offering, including the name or names of any underwriters or
agents, the purchase price or prices of the Securities and the proceeds to the
Company from the sale of the Securities. In addition, Securities may be offered
and issued in consideration for the acquisition (an Acquisition) of
other businesses, assets or securities by us or our subsidiaries. The
consideration for any such Acquisition may consist of any of the Securities
separately, a combination of Securities or any combination of, among other
things, securities, cash and assumption of liabilities.
The Securities may be sold from time to time in one or more
transactions at a fixed price or prices which may be changed or at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices, including sales in transactions that are deemed
to be at-the-market distributions as defined in National Instrument 44-102 -
Shelf Distributions, including sales made directly on the TSX, NYSE MKT
or other existing trading markets for the Common Shares. The prices at which the
Securities may be offered may vary as between purchasers and during the period
of distribution. If, in connection with the offering of Securities at a fixed
price or prices, the underwriters have made a bona fide effort to sell all of
the Securities at the initial offering price fixed in the applicable Prospectus
Supplement, the public offering price may be decreased and thereafter further
changed, from time to time, to an amount not greater than the initial public
offering price fixed in such Prospectus Supplement, in which case the
compensation realized by the underwriters will be decreased by the amount that
the aggregate price paid by purchasers for the Securities is less than the gross
proceeds paid to us by the underwriters.
Underwriters, dealers or agents who participate in the
distribution of Securities may be entitled under agreements to be entered into
with the Company to indemnification by us against certain liabilities, including
liabilities under the United States Securities Act of 1933, as amended, and
applicable Canadian securities legislation, or to contribution with respect to
payments which such underwriters, dealers or agents may be required to make in
respect thereof. The underwriters, dealers or agents with whom we enter into
agreements may be customers of, engage in transactions with, or perform services
for, us in the ordinary course of business.
In connection with any offering of Securities, except as
otherwise set out in a Prospectus Supplement relating to a particular offering
of Securities, the underwriters or dealers, as the case may be, may over-allot
or effect transactions intended to fix or stabilize the market price of the
Securities at a level above that which might otherwise prevail in the open
market. Such transactions, if commenced, may be discontinued at any time.
PRIOR SALES
During the 12 month period before the date of this
Prospectus, we have issued the following Common Shares and securities
convertible into Common Shares:
|
|
|
Number of |
|
Price per |
Security
|
Securities Issued or
|
Date of Issue |
Security (C$)
|
|
Granted |
December 18, 2014 |
2.00 |
Stock Options |
500,000 |
January 19, 2015 |
2.40 |
Stock Options |
50,000 |
January 26, 2015 |
2.30 |
Common Shares |
3,110,950 |
February 2, 2015 |
2.49 |
Restricted Share Units |
75,000 |
February 11, 2015 |
2.16 |
Restricted Share Units |
90,000 |
February 18, 2015 |
2.10 |
Stock Options |
1,140,000 |
March 23, 2015 |
1.90 |
Restricted Share Units |
1,259,910 |
March 30, 2015 |
2.00 |
Stock Options |
20,521,500 |
April 1, 2015 |
1.93 |
Restricted Share Units |
90,000 |
April 10, 2015 |
2.01 |
Common Shares |
313,059 |
April 15, 2015 |
2.01 |
Common Shares |
125,224 |
April 23, 2015 |
1.92 |
Common Shares |
2,557,083 |
April 23, 2015 |
1.90 |
Stock Options |
170,000 |
June 11, 2015 |
2.01 |
Stock Options |
212,000 |
June 18, 2015 |
2.01 |
Stock Options |
250,000 |
July 2, 2015 |
1.87 |
Restricted Share Units |
150,000 |
9
|
Price per |
|
Number of |
|
Security (C$)
|
Security |
Securities Issued or |
Date of Issue |
|
|
Granted |
August 28, 2015 |
1.62 |
Restricted Share Units |
50,000 |
August 31, 2015 |
1.65 |
Stock Options |
175,000 |
September 23, 2015 |
1.49 |
Common Shares |
50,000 |
PRICE RANGE AND TRADING VOLUME
Our Common Shares are listed and posted for trading on the TSX
and NYSE MKT under the trading symbols BTO and BTG, respectively. The
following tables set out the market price range and trading volumes of our
Common Shares on the TSX and NYSE MKT for the periods indicated.
Toronto Stock Exchange (prices in Canadian dollars)
Year |
|
|
High |
|
|
Low |
|
|
Volume |
|
|
|
|
(C$) |
|
|
(C$) |
|
|
(no. of shares)
|
|
2015 |
December 1 - 10
|
|
1.69 |
|
|
1.45 |
|
|
42,865,518 |
|
|
November |
|
1.51 |
|
|
1.31 |
|
|
88,246,740 |
|
|
October |
|
1.88 |
|
|
1.37 |
|
|
92,462,882 |
|
|
September |
|
1.75 |
|
|
1.35 |
|
|
70,145,106 |
|
|
August |
|
1.79 |
|
|
1.30 |
|
|
73,025,399 |
|
|
July |
|
1.98 |
|
|
1.34 |
|
|
72,352,487 |
|
|
June |
|
2.21 |
|
|
1.90 |
|
|
48,159,947 |
|
|
May |
|
2.18 |
|
|
1.86 |
|
|
63,718,986 |
|
|
April |
|
2.04 |
|
|
1.86 |
|
|
54,618,270 |
|
|
March |
|
2.17 |
|
|
1.79 |
|
|
96,223,177 |
|
|
February |
|
2.47 |
|
|
1.99 |
|
|
77,092,854 |
|
|
January |
|
2.88 |
|
|
1.84 |
|
|
143,470,405 |
|
2014 |
December |
|
2.15 |
|
|
1.74 |
|
|
97,703,461 |
|
|
November |
|
2.18 |
|
|
1.65 |
|
|
97,794,214 |
|
On December 10, 2015, the closing price of our Common Shares on
the TSX was C$1.60 per share.
NYSE MKT (prices in U.S. dollars)
Year |
|
|
High |
|
|
Low |
|
|
Volume |
|
|
|
|
(US$) |
|
|
(US$) |
|
|
(no. of shares)
|
|
2015 |
December 1 - 10
|
|
1.26 |
|
|
1.08 |
|
|
23,708,685 |
|
|
November |
|
1.14 |
|
|
0.989 |
|
|
43,924,312 |
|
|
October |
|
1.46 |
|
|
1.03 |
|
|
40,716,298 |
|
|
September |
|
1.29 |
|
|
1.00 |
|
|
68,403,358 |
|
|
August |
|
1.37 |
|
|
0.98 |
|
|
49,556,383 |
|
|
July |
|
1.57 |
|
|
1.02 |
|
|
40,234,259 |
|
|
June |
|
1.77 |
|
|
1.52 |
|
|
42,892,809 |
|
|
May |
|
1.79 |
|
|
1.53 |
|
|
38,194,045 |
|
|
April |
|
1.71 |
|
|
1.48 |
|
|
33,974,902 |
|
|
March |
|
1.73 |
|
|
1.39 |
|
|
59,877,340 |
|
|
February |
|
1.96 |
|
|
1.57 |
|
|
28,815,762 |
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10
Year |
|
|
High |
|
|
Low |
|
|
Volume |
|
|
|
|
(US$) |
|
|
(US$) |
|
|
(no. of shares)
|
|
|
January |
|
2.38 |
|
|
1.57 |
|
|
63,293,381 |
|
2014 |
December |
|
1.89 |
|
|
1.50 |
|
|
143,961,155 |
|
|
November |
|
1.94 |
|
|
1.44 |
|
|
52,021,108 |
|
On December 10, 2015, the closing price of our Common Shares on
NYSE MKT was US$1.17 per share.
DIVIDEND POLICY
We have not declared any dividends or distributions on our
Common Shares since our incorporation. We intend to retain our earnings, if any,
to finance the growth and development of our operations and do not presently
anticipate paying any dividends or distributions in the foreseeable future. Our
board of directors may, however, declare from time to time such cash dividends
or distributions out of the monies legally available for dividends or
distributions as the board of directors considers advisable. Any future
determination to pay dividends or make distributions will be at the discretion
of the board of directors and will depend on our capital requirements, results
of operations and such other factors as the board of directors considers
relevant.
DESCRIPTION OF DEBT SECURITIES
In this section describing the Debt Securities, the terms
Company and B2Gold Corp. refer only to B2Gold Corp. without any of its
subsidiaries. This section describes the general terms that will apply to any
Debt Securities issued pursuant to this Prospectus. The specific terms of the
Debt Securities, and the extent to which the general terms described in this
section apply to those Debt Securities, will be set forth in the applicable
Prospectus Supplement. The Debt Securities will be issued in one or more series
under an indenture (the Indenture) to be entered into between the
Company and one or more trustees (the Trustee) that will be named in a
Prospectus Supplement for a series of Debt Securities. To the extent applicable,
the Indenture will be subject to and governed by the United States Trust
Indenture Act of 1939, as amended. A copy of the form of the Indenture to be
entered into has been filed with the SEC as an exhibit to the registration statement of which
this Prospectus forms a part. The description of certain provisions of the
Indenture in this section is not intended to be complete and is qualified in its
entirety by reference to the provisions of the Indenture. Terms used in this
summary that are not otherwise defined herein have the meaning ascribed to them
in the Indenture.
We may issue Debt Securities and incur additional indebtedness
other than through the offering of Debt Securities pursuant to this Prospectus.
We may be required to obtain the consent of our lenders for the issuance of
certain Debt Securities, depending on their specific terms.
General
The Indenture does not limit the amount of Debt Securities
which we may issue under the Indenture, and we may issue Debt Securities in one
or more series. Debt Securities may be denominated and payable in any currency.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Indenture permits us, without the consent of the holders of any Debt Securities,
to increase the principal amount of any series of Debt Securities we have
previously issued under the Indenture and to issue such increased principal
amount.
The applicable Prospectus Supplement will set forth the
following terms relating to the Debt Securities offered by such Prospectus
Supplement (the Offered Securities):
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the specific designation of the Offered Securities; any
limit on the aggregate principal amount of the Offered Securities; the
date or dates, if any, on which the Offered Securities will mature and the
portion (if less than all of the principal amount) of the Offered
Securities to be payable upon declaration of acceleration of maturity; |
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the rate or rates at which the Offered Securities will
bear interest, if any, the date or dates on which any such interest will
begin to accrue and on which any such interest will be payable and the
record dates for any interest payable on the Offered Securities which are
in registered form; |
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the terms and conditions under which we may be obligated
to redeem, repay or purchase the Offered Securities pursuant to any
sinking fund or analogous provisions or otherwise; |
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the terms and conditions upon which we may redeem the
Offered Securities, in whole or in part, at our option; |
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whether the Offered Securities will be issuable in
registered form or bearer form or both, and, if issuable in bearer form,
the restrictions as to the offer, sale and delivery of the Offered
Securities which are in bearer form and as to exchanges between registered
form and bearer form; |
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whether the Offered Securities will be issuable in the
form of registered global securities (Global Securities), and, if
so, the identity of the depositary for such registered Global Securities; |
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the denominations in which registered Offered Securities
will be issuable, if other than denominations of US$1,000 and any multiple
thereof, and the denominations in which bearer Offered Securities will be
issuable, if other than US$1,000; |
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each office or agency where payments on the Offered
Securities will be made (if other than the offices or agencies described
under Payment below) and each office or agency where the Offered
Securities may be presented for registration of transfer or exchange; |
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if other than U.S. dollars, the currency in which the
Offered Securities are denominated or the currency in which we will make
payments on the Offered Securities; |
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the terms, if any, on which the Offered Securities may be
converted or exchanged for other of our Securities or securities of other
entities; |
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any index, formula or other method used to determine the
amount of payments of principal of (and premium, if any) or interest, if
any, on the Offered Securities; |
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any other terms of the Offered
Securities which apply solely to the Offered Securities, or terms
generally applicable to the Debt Securities which are not to apply to the
Offered Securities; and |
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if not obtained as at the date of
such Prospectus Supplement, any consents required to be obtained with
respect to the issuance of the Offered Securities. |
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Unless otherwise
indicated in the applicable Prospectus Supplement: |
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holders may not tender Debt
Securities to us for repurchase; and |
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the rate or rates of interest on the
Debt Securities will not increase if we become involved in a highly
leveraged transaction or we are acquired by another entity.
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We may issue Debt Securities under the Indenture bearing no
interest or interest at a rate below the prevailing market rate at the time of
issuance. We may offer and sell Debt Securities at a discount below their stated
principal amount. We will describe in the applicable Prospectus Supplement any
Canadian and U.S. federal income tax consequences and other special
considerations applicable to any discounted Debt Securities or other Debt
Securities offered and sold at par which are treated as having been issued at a
discount for Canadian and/or U.S. federal income tax purposes.
Any Debt Securities we issue will be our direct, unconditional
and unsecured obligations and will rank equally among themselves and with all of
our other unsecured, unsubordinated obligations, except to the extent prescribed
by law. Debt Securities we issue will be structurally subordinated to all
existing and future liabilities, including trade payables and other
indebtedness, of our subsidiaries.
We will agree to provide to the Trustee (i) annual reports
containing audited financial statements and (ii) quarterly reports for the first
three quarters of each fiscal year containing unaudited financial
information.
12
Form, Denomination, Exchange and Transfer
Unless otherwise indicated in the applicable Prospectus
Supplement, we will issue Debt Securities only in fully registered form without
coupons, and in denominations of US$1,000 and multiples of US$1,000. Debt
Securities may be presented for exchange and registered Debt Securities may be
presented for registration of transfer in the manner set forth in the Indenture
and in the applicable Prospectus Supplement, without service charges. We may,
however, require payment sufficient to cover any taxes or other governmental
charges due in connection with the exchange or transfer. We will appoint the
Trustee as security registrar. Bearer Debt Securities and the coupons applicable
to bearer Debt Securities thereto will be transferable by delivery.
Payment
Unless otherwise indicated in the applicable Prospectus
Supplement, we will make payments on registered Debt Securities (other than
Global Securities) at the office or agency of the Trustee, except that we may
choose to pay interest (a) by check mailed to the address of the person entitled
to such payment as specified in the security register or (b) by wire transfer to
an account maintained by the person entitled to such payment as specified in the
security register. Unless otherwise indicated in the applicable Prospectus
Supplement, we will pay any interest due on registered Debt Securities to the
persons in whose name such registered Debt Securities are registered on the day
or days, specified in the applicable Prospectus Supplement.
Registered Global Securities
Registered debt securities of a series may be issued in whole
or in part in global form that will be deposited with, or on behalf of, a
depositary identified in the Prospectus Supplement. Global Securities will be
registered in the name of a financial institution that we select, and the debt
securities included in the Global Securities may not be transferred to the name
of any other direct holder unless the special circumstances described below
occur. The financial institution that acts as the sole direct holder of the
Global Securities is called the Depositary. Any person wishing to own Debt
Securities issued in the form of Global Securities must do so indirectly by
virtue of an account with a broker, bank or other financial institution that, in
turn, has an account with the Depositary.
Special Investor Considerations for Global Securities
Our obligations, as well as the obligations of the Trustee and
those of any third parties we employed or the Trustee, run only to persons who
are registered as holders of Debt Securities. For example, once we make payment
to the registered holder, we have no further responsibility for the payment even
if that holder is legally required to pass the payment along to an investor but
does not do so. As an indirect holder, an investor's rights relating to a Global
Security will be governed by the account rules of the investors financial
institution and of the Depositary, as well as general laws relating to debt
securities transfers.
An investor should be aware that when Debt Securities are
issued in the form of Global Securities:
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the investor cannot have Debt Securities registered in
his or her own name; |
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the investor cannot receive physical certificates for his
or her interest in the Debt Securities; |
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the investor must look to his or her own bank or
brokerage firm for payments on the Debt Securities and protection of his
or her legal rights relating to the Debt Securities; |
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the investor may not be able to sell interests in the
Debt Securities to some insurance companies and other institutions that
are required by law to hold the physical certificates of Debt Securities
that they own; |
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the Depositarys policies will govern payments,
transfers, exchange and other matters relating to the investor's interest
in the Global Security. We and the Trustee will have no responsibility for
any aspect of the Depositarys actions or for its records of ownership
interests in the Global Security. We and the Trustee also do not supervise
the Depositary in any way; and |
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the Depositary will usually require that interests in a
Global Security be purchased or sold within its system using same-day
funds. |
13
Special Situations When Global Security Will be Terminated
In a few special situations described below, a Global Security
will terminate and interests in it will be exchanged for physical certificates
representing Debt Securities. After that exchange, an investor may choose
whether to hold Debt Securities directly or indirectly through an account at its
bank or brokerage firm. Investors must consult their own banks or brokers to
find out how to have their interests in Debt Securities transferred into their
own names, so that they will be direct holders.
The special situations for termination of a Global Security
are:
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when the Depositary notifies us that
it is unwilling, unable or no longer qualified to continue as Depositary
(unless a replacement Depositary is named); and |
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when and if we decide to terminate a
Global Security. |
The Prospectus Supplement may list situations for terminating a
Global Security that would apply only to the particular series of Debt
Securities covered by the Prospectus Supplement. When a Global Security
terminates, the Depositary (and not us or the Trustee) is responsible for
deciding the names of the institutions that will be the initial direct holders.
Events of Default
The term Event of Default with respect to Debt Securities of
any series means any of the following:
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(a) |
default in the payment of the principal of (or any
premium on) any Security of that series at its maturity; |
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(b) |
default in the payment of any interest on any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; |
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(c) |
default in the deposit of any sinking fund payment when
the same becomes due by the terms of the Debt Securities
of that series; |
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(d) |
default in the performance, or breach, of any other
covenant or agreement of ours in the Indenture in respect of the Debt
Securities of that series (other than a covenant or agreement for which
default or breach is specifically dealt with elsewhere in the Indenture),
where such default or breach continues for a period of 90 days after
written notice to us by the Trustee or the holders of at least 25% in
principal amount of all outstanding Debt Securities affected
thereby; |
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(e) |
certain events of bankruptcy, insolvency or
reorganization; or |
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(f) |
any other Events of Default provided with respect to the
Debt Securities of that series. |
If an Event of Default described in clause (a), (b) or (c)
above occurs and is continuing with respect to Debt Securities of any series,
then the Trustee or the holders of not less than 25% in principal amount of the
outstanding Debt Securities of that series may require the principal amount (or,
if the Debt Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the outstanding Debt Securities of that series
and any accrued but unpaid interest on such Debt Securities be paid immediately.
If an Event of Default described in clause (d) or (f) above occurs and is
continuing with respect to Debt Securities of one or more series, then the
Trustee or the holders of not less than 25% in principal amount of the
outstanding Debt Securities of all series affected thereby (as one class) may
require the principal amount (or, if any of the Debt Securities of such affected
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of such
affected series) of all the outstanding Debt Securities of such affected series
and any accrued but unpaid interest on such Debt Securities be paid immediately.
If an Event of Default described in clause (e) above occurs and is continuing,
then the Trustee or the holders of not less than 25% in principal amount of all
outstanding Debt Securities (as a class) may require the principal amount (or,
if the Debt Securities or any series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the outstanding Securities and any accrued but
unpaid interest on such Debt Securities be paid immediately. However, at any
time after a declaration of acceleration with respect to Debt Securities of any
series (or of all series, as the case may be) has been made and before a
judgment or decree for payment of the money due has been obtained, the holders
of a majority in principal amount of the outstanding Debt Securities of such
series (or of all series, as the case may be), by written notice to us and the
Trustee, may, under certain circumstances, rescind and annul such acceleration.
The applicable Prospectus Supplement will contain provisions relating to
acceleration of the maturity of a portion of the principal amount of Original
Issue Discount Securities or Indexed Securities upon the occurrence of any Event
of Default and the continuation thereof.
14
Except during default, the Trustee is not obligated to exercise
any of its rights and powers under the Indenture at the request or direction of
any of the holders, unless the holders have offered to the Trustee reasonable
indemnity. If the holders provide reasonable indemnity, the holders of a
majority in principal amount of the outstanding Debt Securities of all series
affected by an Event of Default may, subject to certain limitations, direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of all series affected by such Event of
Default.
No holder of a Debt Security of any series will have any right
to institute any proceedings, unless:
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such holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to the Debt
Securities of that series; |
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the holders of at least 25% in principal amount
of the outstanding Debt Securities of all series affected by such Event of
Default have made written request and have offered reasonable indemnity to
the Trustee to institute such proceedings as trustee; and |
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the Trustee has failed to institute such
proceedings, and has not received from the holders of a majority in the
aggregate principal amount of outstanding Debt Securities of all series
affected by such Event of Default a direction inconsistent with such
request, within 60 days after such notice, request and offer.
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However, these limitations do not apply to a suit instituted by
the holder of a Debt Security for the enforcement of payment of principal of or
interest on such Debt Security on or after the applicable due date of such
payment.
We will be required to furnish to the Trustee annually an
officers certificate as to the performance of certain of our obligations under
the Indenture and as to any default in such performance.
Defeasance
When we use the term defeasance, we mean discharge from some
or all of our obligations under the Indenture with respect to Debt Securities of
a particular series. If we deposit with the Trustee sufficient cash or
government securities to pay the principal, interest, any premium and any other
sums due to the stated maturity or a redemption date of the Debt Securities of a
particular series, then at our option:
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We will be discharged from our obligations with respect
to the Debt Securities of such series with certain exceptions, and the
holders of the Debt Securities of the affected series will not be entitled
to the benefits of the Indenture except for registration of transfer and
exchange of Debt Securities and replacement of lost, stolen or mutilated
Debt Securities and certain other limited rights. Such holders may look
only to such deposited funds or obligations for payment; or |
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We will no longer be under any obligation to comply with
certain covenants under the Indenture, and certain Events of Default will
no longer apply to us. |
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To exercise defeasance we also must
deliver to the Trustee: |
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an opinion of U.S. counsel to the effect that the deposit
and related defeasance would not cause the holders of the Debt Securities
of the applicable series to recognize income, gain or loss for U.S.
federal income tax purposes and that holders of the Debt Securities of
that series will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred; and |
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an opinion of Canadian counsel or a ruling from Canada
Revenue Agency that there would be no such recognition of income, gain or
loss for Canadian federal or provincial tax purposes and that holders of
the Debt Securities of such series will be subject to Canadian federal and
provincial income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not
occurred. |
15
In addition, no Event of Default with respect to the Debt
Securities of the applicable series can have occurred and we cannot be an
insolvent person under the Bankruptcy and Insolvency Act (Canada). In
order for U.S. counsel to deliver the opinion that would allow us to be
discharged from all of our obligations under the Debt Securities of any series,
we must have received from, or there must have been published by, the Internal
Revenue Service a ruling, or there must have been a change in law so that the
deposit and defeasance would not cause holders of the Debt Securities of such
series to recognize income, gain or loss for U.S. federal income tax purposes
and so that such holders would be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same time as would have been the case if
such defeasance had not occurred.
Modifications and Waivers
We may modify or amend the Indenture with the consent of the
holders of a majority in aggregate principal amount of the outstanding Debt
Securities of all series affected by such modification or amendment provided,
however, that we must receive consent from the holder of each outstanding Debt
Security of such affected series to:
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change the stated maturity of the principal of
or interest on such outstanding Debt Security; |
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reduce the principal amount of or interest on
such outstanding Debt Security; |
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reduce the amount of the principal payable upon
the acceleration of the maturity of an outstanding Original Issue Discount
Security; |
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change the place or currency of payments on
such outstanding Debt Security; |
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impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security;
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reduce the percentage in principal amount of outstanding
Debt Securities of such series from which the consent of holders is
required to modify or amend the Indenture or waive compliance with certain
provisions of the Indenture or waive certain defaults; or |
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modify any provisions of the Indenture relating to
modifying or amending the Indenture or waiving past defaults or covenants
except as otherwise specified. |
The holders of a majority in principal amount of Debt
Securities of any series may waive our compliance with certain restrictive
provisions of the Indenture with respect to such series. The holders of a
majority in principal amount of outstanding Debt Securities of all series with
respect to which an Event of Default has occurred may waive any past default
under the Indenture, except a default in the payment of the principal of, or
interest on, any Security or in respect of any item listed above.
The Indenture or the Debt Securities may be amended or
supplemented, without the consent of any holder of such Debt Securities, in
order to, among other things, cure any ambiguity or inconsistency or to make any
change, in any case, that does not have a materially adverse effect on the
rights of any holder of such Debt Securities.
Consent to Jurisdiction and Service
Under the Indenture, we will irrevocably appoint an authorized
agent upon which process may be served in any suit, action or proceeding arising
out of or relating to the Indenture and the Debt Securities and for actions
brought under federal or state securities laws brought in any federal or state
court located in The City of New York (herein after referred to as a New York
Court), and will submit to such non-exclusive jurisdiction.
Governing Law
The Indenture and the Debt Securities will be governed by and
construed in accordance with the laws of the State of New York.
16
Enforceability of Judgments
Since all of the assets of the Company are outside the United
States, any judgment obtained in the United States against us would need to be
satisfied by seeking enforcement of such judgment in a court located outside of
the United States from our assets. We have been advised by our Canadian counsel,
Lawson Lundell LLP, that there is doubt as to the enforceability in Canada by a
court in original actions, or in actions to enforce judgments of United States
courts, of civil liabilities predicated upon United States federal securities
laws.
The Trustee
The Trustee under the Indenture will be named in the applicable
Prospectus Supplement.
DESCRIPTION OF WARRANTS
We may issue Warrants to purchase Common Shares or Debt
Securities. This section describes the general terms that will apply to
any Warrants issued pursuant to this Prospectus.
Warrants may be offered separately or together with other
Securities and may be attached to or separate from any other Securities. Unless
the applicable Prospectus Supplement otherwise indicates, each series of
Warrants will be issued under a separate warrant indenture to be entered into
between us and one or more banks or trust companies acting as Warrant agent. The
Warrant agent will act solely as our agent and will not assume a relationship of
agency with any holders of Warrant certificates or beneficial owners of
Warrants. The applicable Prospectus Supplement will include details of the
warrant indentures, if any, governing the Warrants being offered. The specific
terms of the Warrants, and the extent to which the general terms described in
this section apply to those Warrants, will be set out in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, we will not offer Warrants for
sale separately to any member of the public in Canada unless the offering of
such Warrants is in connection with and forms part of the consideration for an
acquisition or merger transaction or unless the Prospectus Supplement containing the specific terms of the
Warrants to be offered separately is first approved for filing by the securities
commissions or similar regulatory authorities in each of the provinces of Canada
where the Warrants will be offered for sale.
The Prospectus Supplement relating to any Warrants that we
offer will describe the Warrants and the specific terms relating to the
offering. The description will include, where applicable:
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the designation and aggregate number of
Warrants; |
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the price at which the Warrants will be
offered; |
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the currency or currencies in which the
Warrants will be offered; |
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the date on which the right to exercise the
Warrants will commence and the date on which the right will expire; |
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the designation, number and terms of the Common
Shares or Debt Securities, as applicable, that may be purchased upon
exercise of the Warrants, and the procedures that will result in the
adjustment of those numbers; |
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the exercise price of the Warrants; |
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the designation and terms of the Securities, if
any, with which the Warrants will be offered, and the number of Warrants
that will be offered with each Security; |
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if the Warrants are issued as a unit with
another Security, the date, if any, on and after which the Warrants and
the other Security will be separately transferable; |
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any minimum or maximum amount of Warrants that
may be exercised at any one time; |
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any terms, procedures and limitations relating
to the transferability, exchange or exercise of the Warrants; |
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whether the Warrants will be subject to
redemption or call and, if so, the terms of such redemption or call
provisions; |
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material United States and Canadian federal
income tax consequences of owning the Warrants; and |
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any other material terms or conditions of the
Warrants. |
Warrant certificates will be exchangeable for new Warrant
certificates of different denominations at the office indicated in the
Prospectus Supplement. Prior to the exercise of their Warrants, holders of
Warrants will not have any of the rights of holders of the securities subject to
the Warrants. We may amend the warrant indenture(s) and the Warrants, without
the consent of the holders of the Warrants, to cure any ambiguity, to cure,
correct or supplement any defective or inconsistent provision or in any other
manner that will not prejudice the rights of the holders of outstanding
Warrants, as a group.
DESCRIPTION OF SUBSCRIPTION RECEIPTS
We may issue Subscription Receipts, separately or together,
with Common Shares, Debt Securities or Warrants, as the case may be. The
Subscription Receipts will be issued under a subscription receipt agreement.
This section describes the general terms that will apply to any Subscription
Receipts that we may offer pursuant to this Prospectus.
The applicable Prospectus Supplement will include details of
the subscription receipt agreement covering the Subscription Receipts being
offered. We will file a copy of the subscription receipt agreement relating to
an offering of Subscription Receipts with securities regulatory authorities in
Canada and the United States after we have entered into it. The specific terms
of the Subscription Receipts, and the extent to which the general terms
described in this section apply to those Subscription Receipts, will be set
forth in the applicable Prospectus Supplement. This description will include,
where applicable:
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the number of Subscription Receipts;
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the price at which the Subscription Receipts
will be offered and whether the price is payable in instalments; |
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conditions to the exchange of Subscription
Receipts into Common Shares, Debt Securities or Warrants, as the case may
be, and the consequences of such conditions not being satisfied; |
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the procedures for the exchange of the
Subscription Receipts into Common Shares, Debt Securities or Warrants;
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the number of Common Shares or Warrants that
may be exchanged upon exercise of each Subscription Receipt; |
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the aggregate principal amount, currency or
currencies, denominations and terms of the series of Debt Securities that
may be exchanged upon exercise of the Subscription Receipts; |
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the designation and terms of any other
Securities with which the Subscription Receipts will be offered, if any,
and the number of subscription receipts that will be offered with each
Security; |
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the dates or periods during which the
Subscription Receipts may be exchanged into Common Shares, Debt Securities
or Warrants; |
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terms applicable to the gross or net proceeds
from the sale of the Subscription Receipts plus any interest earned
thereon; |
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material United States and Canadian federal
income tax consequences of owning the Subscription Receipts; |
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any other rights, privileges, restrictions and
conditions attaching to the Subscription Receipts; and |
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any other material terms and conditions of the
Subscription Receipts. |
18
Subscription Receipt certificates will be exchangeable for new
Subscription Receipt certificates of different denominations at the office
indicated in the Prospectus Supplement. Prior to the exchange of their
Subscription Receipts, holders of Subscription Receipts will not have any of the
rights of holders of the securities subject to the Subscription Receipts.
Under the subscription receipt agreement, a Canadian purchaser
of Subscription Receipts will have a contractual right of rescission following
the issuance of Common Shares, Debt Securities or Warrants, as the case may be,
to such purchaser, entitling the purchaser to receive the amount paid for the
Subscription Receipts upon surrender of the Common Shares, Debt Securities or
Warrants, as the case may be, if this Prospectus, the applicable Prospectus
Supplement, and any amendment thereto, contains a misrepresentation, provided
such remedy for rescission is exercised within 180 days of the date the
Subscription Receipts are issued. This right of rescission does not extend to
holders of Subscription Receipts who acquire such Subscription Receipts from an
initial purchaser, on the open market or otherwise, or to initial purchasers who
acquire Subscription Receipts in the United States or other jurisdictions
outside Canada.
DESCRIPTION OF UNITS
We may issue Units comprised of one or more of the other
Securities described in the Prospectus in any combination. Each Unit will be
issued so that the holder of the Unit is also the holder of each of the
Securities included in the Unit. Thus, the holder of a Unit will have the rights
and obligations of a holder of each included Security. The unit agreement, if
any, under which a Unit is issued may provide that the Securities included in
the Unit may not be held or transferred separately, at any time or at any time
before a specified date.
The particular terms and provisions of Units offered by any
Prospectus Supplement, and the extent to which the general terms and provisions
described below may apply thereto, will be described in the Prospectus
Supplement filed in respect of such Units.
DESCRIPTION OF SHARE CAPITAL
Our authorized share capital consists of an unlimited number of Common Shares and an unlimited number of preferred shares. As at the date of this Prospectus, 926,708,403 Common Shares and no preferred shares are issued and outstanding.
Common Shares
Registered holders of Common Shares are entitled to receive notice of and attend all meetings of our shareholders, and are entitled to one vote for each Common Share held. In addition, holders of Common Shares are entitled to receive on a pro rata basis dividends if, as and when declared by our board of directors and, upon liquidation, dissolution or winding-up, are entitled to receive on a pro rata basis our net assets after payment of debts and other liabilities, in each case subject to the rights, privileges, restrictions and conditions attaching to any other series or class of shares, including preferred shares, ranking in priority to, or equal with, the holders of the Common Shares. Any alteration of the rights attached to Common Shares must be approved by at least two-thirds of the Common Shares voted at a meeting of our shareholders.
Preferred Shares
Preferred shares without par value may at any time and from time to time be issued in one or more series. Our board of directors may from time to time by resolution determine the maximum number of preferred shares of any such series or determine there is no maximum, determine the designation of the preferred shares of that series and amend our articles to create, define and attach, and if permitted by the Business Corporations Act (British Columbia) (“BCBCA”), alter, vary or abrogate, any special rights and restrictions to be attached to the preferred shares of that series. Except as provided in the special rights and restrictions attaching to the preferred shares, the holders of preferred shares will not be entitled to receive notice of, attend or vote any meeting of our shareholders. Holders of preferred shares will be entitled to preference with respect to the payment of dividends on such shares over the Common Shares, and over any other of our shares ranking junior to the preferred shares with respect to payment of dividends. In the event of our liquidation, dissolution or winding-up, holders of preferred shares will be entitled to preference with respect to distribution of our property or assets over the Common Shares and over any of our other shares ranking junior to the preferred shares with respect to the repayment of capital paid up on, and the payment of any or all accrued and unpaid cumulative dividends whether or not earned or declared, or any or all declared and unpaid non-cumulative dividends, on the preferred shares.
19
CERTAIN INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement will describe certain
Canadian and U.S. federal income tax consequences to investors described therein
of acquiring any Securities offered thereunder.
LEGAL MATTERS
Certain legal matters related to the Securities offered by this
Prospectus will be passed upon on our behalf by Lawson Lundell LLP with respect
to Canadian legal matters and by Dorsey & Whitney LLP with respect to U.S.
legal matters.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Shares in
Canada is Computershare Investor Services Inc. at its principal offices in
Vancouver, British Columbia.
INTEREST OF EXPERTS
None of Donald E. Hulse, P.E., William J. Crowl, MMSA, Deepak
Malhotra, Ph.D., Mark Turner, B.Eng., MAusIMM, Andrew Vigar, B. App Sc Geo.,
FAusIMM, MSEG, FAusMM CP, Mark Wanless, Pr.Sci.Nat., Shaun Crisp, Pr.Sci.Nat.,
William Lytle, P.E., M.Sc., B.Sc., Tom Garagan, P.Geo, B.Sc., Hermanus Kriel,
Pr.Eng., B.Eng., Glenn Bezuidenhout, Pr.Eng., FSAIMM, Guy Wiid, Pr.Eng., M.Sc.,
B.Sc. and Werner Petrick, Certified Environmental Practitioner, B.Sc. Eng.,
M.Env. Mgt., William N. Pearson, Ph.D., P.Geo., Graham Speirs, P.Eng., Nic
Johnson, MAIG, Chris Kaye, FAusIMM, Don Tschabrun RM SME, Stephanus Coetzee,
Pr.SciNat, Ben Parsons, MAusIMM (CP), MSc, Jonathon Priest, SCPM, C.Eng., MIMMM,
PMP, M.Eng, Andrew Carter, B.Sc., C.Eng., MIMMM, MSAIMM, SME, Laszlo Bodi,
M.Sc., P.Eng., Richard Hope, C.Eng., MIMMM, Geoff Ricks, C.Env, FIMMM PhD, Ian Lloyd,
B.Eng., M.Sc., C.Eng. MIET, Brian Scott, P. Geo., Kevin Pemberton, P.E., Peter
Montano, P.E., Vaughan Chamberlain, FAusIMM, Ken Jones, P.E., Sandy Hunter,
MAusIMM (CP) and David Morgan, MIE Aust CPEng, each being persons who
have prepared or certified a report under NI 43-101 referenced in this
Prospectus, either directly or in a document incorporated by reference, received
or has received a direct or indirect interest in any securities or other
property of the Company or of any associate or affiliate of the Company.
As at the date hereof, the aforementioned persons, and the
directors, officers and employees, as applicable, of each of the aforementioned
companies and partnerships beneficially own, directly or indirectly, in the
aggregate, less than one percent of the securities of the Company.
Neither the aforementioned persons, nor any director, officer,
employee or partner, as applicable, of the aforementioned companies or
partnerships, is currently expected to be elected, appointed or employed as a
director, officer or employee of us or of any associate or affiliate of us.
Our auditors, PricewaterhouseCoopers LLP, Chartered
Professional Accountants, of Vancouver, British Columbia, report that they are
independent from us in accordance with the Chartered Professional Accountants of
British Columbia, Canada, Code of Professional Conduct and with the rules and
regulations of the SEC. PricewaterhouseCoopers LLP is registered with the Public
Company Accounting Oversight Board.
ENFORCEABILITY OF CIVIL LIABILITIES
We are a company organized and existing under the BCBCA. Many
of our directors and officers, and some of the experts named in this Prospectus,
are residents of Canada or otherwise reside outside the United States, and all
or a substantial portion of their assets, and a substantial portion of our
assets, are located outside the United States. We have appointed an agent for
service of process in the United States, but it may be difficult for holders of
Securities who reside in the United States to effect service within the United
States upon those directors, officers and experts who are not residents of the
United States. It may also be difficult for holders of Securities who reside in
the United States to realize in the United States upon judgments of courts of
the United States predicated upon our civil liability and the civil liability of
our directors, officers and experts under the United States federal securities
laws. A final judgment for a liquidated sum in favour of a private litigant
granted by a United States court and predicated solely upon civil liability
under United States federal securities laws would, subject to certain exceptions
identified in the law of individual provinces and territories of Canada, likely
be enforceable in Canada if the United States court in which the judgment was
obtained had a basis for jurisdiction in the matter that would be recognized by
the domestic Canadian court for the same purposes. There is a significant risk
that a given Canadian court may not have jurisdiction or may decline
jurisdiction over a claim based solely upon United States federal securities law
on application of the conflict of laws principles of the province or territory
in Canada in which the claim is brought.
20
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR
PURCHASERS
Indemnification of Directors and Officers.
Business Corporations Act
The Business Corporations Act (British Columbia)
(BCBCA) provides that a company may:
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indemnify an eligible party against all judgments, penalties or fines
awarded or imposed in, or amounts paid in settlement of, an eligible
proceeding, to which the eligible party is or may be liable; and
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after the final disposition of an eligible proceeding, pay the expenses
(which includes costs, charges and expenses (including legal and other fees)
but excludes judgments, penalties, fines or amounts paid in settlement of a
proceeding) actually and reasonably incurred by an eligible party in respect
of that proceeding.
However, after the final disposition of an eligible proceeding,
a company must pay expenses actually and reasonably incurred by an eligible
party in respect of that proceeding if the eligible party (i) has not been
reimbursed for those expenses, and (ii) is wholly successful, on the merits or
otherwise, or is substantially successful on the merits, in the outcome of the
proceeding. The BCBCA also provides that a company may pay the expenses as they
are incurred in advance of the final disposition of an eligible proceeding if
the company first receives from the eligible party a written undertaking that,
if it is ultimately determined that the payment of expenses is prohibited under
the BCBCA, the eligible party will repay the amounts advanced.
For the purpose of the BCBCA, an eligible party, in relation
to a company, means an individual who:
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is or was a director or officer of the company; |
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is or was a director or officer of another
corporation |
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at a time when the corporation is or was an affiliate of
the company, or |
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at the request of the company; or |
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at the request of the company, is or was, or holds or
held a position equivalent to that of, a director or officer of a
partnership, trust, joint venture or other unincorporated
entity; |
and includes, with some exceptions, the heirs and personal or
other legal representatives of that individual.
An eligible proceeding under the BCBCA is a proceeding in
which an eligible party or any of the heirs and personal or other legal
representatives of the eligible party, by reason of the eligible party being or
having been a director or officer of, or holding or having held a position
equivalent to that of a director or officer of, the company or an associated
corporation (i) is or may be joined as a party, or (ii) is or may be liable for
or in respect of a judgment, penalty or fine in, or expenses related to, the
proceeding. A proceeding includes any legal proceeding or investigative
action, whether current, threatened, pending or completed.
Notwithstanding the foregoing, the BCBCA prohibits indemnifying
an eligible party or paying the expenses of an eligible party if any of the
following conditions apply:
- if the indemnity or payment is made under an earlier agreement to
indemnify or pay expenses and, at the time that such agreement was made, the
company was prohibited from giving the indemnity or paying the expenses by its
memorandum or articles;
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if the indemnity or payment is made otherwise than under an earlier
agreement to indemnify or pay expenses and, at the time that the indemnity or
payment is made, the company is prohibited from giving the indemnity or paying
the expenses by its memorandum or articles;
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if, in relation to the subject matter of the eligible proceeding, the
eligible party did not act honestly and in good faith with a view to the best
interests of the company or the associated corporation, or as the case may be;
or
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in the case of an eligible proceeding other than a civil proceeding, if the
eligible party did not have reasonable grounds for believing that the eligible
partys conduct in respect of which the proceeding was brought was lawful.
Additionally, if an eligible proceeding is brought against an
eligible party by or on behalf of the company or by or on behalf of an
associated corporation, the company must not (i) indemnify the eligible party in
respect of the proceeding; or (ii) pay the expenses of the eligible party in
respect of the proceeding.
Whether or not payment of expenses or indemnification has been
sought, authorized or declined under the BCBCA, on the application of a company
or an eligible party, the Supreme Court of British Columbia may do one or more
of the following:
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order a company to indemnify an eligible party against any liability
incurred by the eligible party in respect of an eligible proceeding;
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order a company to pay some or all of the expenses incurred by an eligible
party in respect of an eligible proceeding;
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order the enforcement of, or any payment under, an agreement of
indemnification entered into by a company;
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order a company to pay some or all of the expenses actually and reasonably
incurred by any person in obtaining an order under this section; or
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make any other order the court considers appropriate.
The BCBCA provides that a company may purchase and maintain
insurance for the benefit of an eligible party or the heirs and personal or
other legal representatives of the eligible party against any liability that may
be incurred by reason of the eligible party being or having been a director or
officer of, or holding or having held a position equivalent to that of a
director or officer of, the company or an associated corporation.
Articles of the Registrant
The Registrants articles provide that, subject to the BCBCA,
the Registrant must indemnify a director, former director or alternate director
and his or her heirs and legal personal representatives against all eligible
penalties to which such person is or may be liable and must, after the final
disposition of an eligible proceeding, pay the expenses actually and reasonably
incurred by such person in respect of that proceeding. Pursuant to the
Registrants articles, each director is deemed to have contracted with the
Registrant on the aforementioned terms.
The Registrants articles further provide that the Registrant
may indemnify any person, subject to any restrictions in the BCBCA, and that the
failure of a director, alternate director or officer of the Registrant to comply
with the BCBCA or the Registrants articles does not invalidate any indemnity to
which he or she is entitled under the Registrants articles.
The Registrant is authorized by its articles to purchase and
maintain insurance for the benefit of any eligible party.
The Registrant maintains directors and officers liability
insurance coverage through a policy covering the Registrant and its
subsidiaries, which has an annual aggregate policy limit of Cdn$100 million,
subject to a corporate deductible of Cdn$100,000 per loss for all claims
pursuant to Canadian securities laws and Cdn$500,000 per loss for all claims
pursuant to U.S. securities laws or relating to mergers and acquisitions. This
insurance provides coverage for indemnity payments made by the Registrant to its
directors, alternate directors and officers as required or permitted by law for
losses, including legal costs, incurred by officers, directors and alternate
directors in their capacity as such. This policy also provides coverage directly
to individual directors, alternate directors and officers if they are not
indemnified by the Registrant. The insurance coverage for directors, alternate
directors and officers has customary exclusions, including certain acts of libel
and slander, and those acts determined to be uninsurable under law, or
deliberately fraudulent or dishonest or to have resulted in personal profit or
advantage.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is therefore unenforceable.
Exhibits
Exhibit |
Description |
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4.1 |
Annual information form for the year ended December 31,
2014 dated March 27, 2015 (incorporated by reference from the Registrants
Annual Report on Form 40-F filed with the Commission on March 30, 2015) |
4.2 |
Audited consolidated financial statements of the
Registrant for the years ended December 31, 2014 and 2013 together with
the notes thereto and the auditors report thereon, (incorporated by
reference from the Registrants Annual Report on Form 40-F filed with the
Commission on March 30, 2015) |
4.3 |
Managements discussion and analysis of financial
position and results of operations for the year ended December 31, 2014
(incorporated by reference from the Registrants Annual Report on Form
40-F filed with the Commission on March 30, 2015) |
4.4 |
Management information circular of the Registrant dated
May 8, 2015 prepared in connection with the Registrants annual meeting of
shareholders held on June 12, 2015 (incorporated by reference from the
Registrants Form 6-K furnished to the Commission on May 13, 2015) |
4.5 |
Unaudited condensed interim consolidated financial
statements of the Registrant for the three and nine months ended September
30, 2015, together with the notes thereto (incorporated by reference from
the Registrants Form 6-K furnished to the Commission on November 13,
2015) |
4.6 |
Managements discussion and analysis of financial
position and results of operations for the three and nine months ended
September 30, 2015 (incorporated by reference from the Registrants Form
6-K furnished to the Commission on November 13, 2015) |
4.7 |
Press release dated May 20, 2015 (incorporated by
reference from the Registrants Form 6-K furnished to the Commission on
May 21, 2015) |
4.8 |
Press release dated June 11, 2015 (incorporated by
reference from the Registrants Form 6-K furnished to the Commission on
June 12, 2015) |
5.1 |
Consent of
PricewaterhouseCoopers LLP |
5.2 |
Consent of William Pearson* |
5.3 |
Consent of Graham Speirs* |
5.4 |
Consent of Brian Scott |
5.5 |
Consent of Mark Wanless* |
5.6 |
Consent of Shaun Crisp* |
5.7 |
Consent of Hermanus Kriel* |
5.8 |
Consent of Werner Petrick |
5.9 |
Consent of William Lytle |
5.10 |
Consent of Tom Garagan |
5.11 |
Consent of Glenn Bezuidenhout |
5.12 |
Consent of Guy Wiid |
5.13 |
Consent of Mark Turner |
5.14 |
Consent of Andrew Vigar* |
5.15 |
Consent of Peter Montano |
5.16 |
Consent of Kevin Pemberton* |
5.17 |
Consent of Vaughan Chamberlain |
5.18 |
Consent of Ben Parsons* |
5.19 |
Consent of Jonathon Priest |
5.20 |
Consent of Andrew Carter |
5.21 |
Consent of Laszlo Bodi |
5.22 |
Consent of Richard Hope* |
5.23 |
Consent of Geoff Ricks |
5.24 |
Consent of Ian Lloyd* |
5.25 |
Consent of Nic Johnson |
5.26 |
Consent of Chris Kaye* |
5.27 |
Consent of Don Tschabrun* |
5.28 |
Consent of Stephanus Coetzee* |
5.29 |
Consent of Donald Hulse |
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* To be filed by amendment |
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
The Registrant undertakes to make
available, in person or by telephone, representatives to respond to inquiries
made by the Commission staff, and to furnish promptly, when requested to do so
by the Commission staff, information relating to the securities registered
pursuant to this Form F-10 or to transactions in said securities.
Item 2. Consent to Service of Process.
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(a) |
Concurrently with the filing of this Registration
Statement, the Registrant is filing with the Commission a written
irrevocable consent and power of attorney on Form F-X. |
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(b) |
Any change to the name or address of the Registrants
agent for service shall be communicated promptly to the Commission by
amendment to Form F-X referencing the file number of this Registration
Statement. |
SIGNATURES
Pursuant to the requirements of
the Securities Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form F-10
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Vancouver, Province
of British Columbia, Canada, on this 11th day of December, 2015.
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B2GOLD CORP. |
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By: |
/s/ Roger Richer |
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Name: |
Roger Richer |
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Title: |
Executive Vice President, General |
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Counsel and
Secretary |
POWERS OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Roger Richer and Mike Cinnamond, and each
of them, either of whom may act without the joinder of the other, as his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement and registration statements filed pursuant to
Rule 429 under the Securities Act, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the U.S. Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of
the Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
Signature |
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Title |
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Date |
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/s/ Clive T.
Johnson |
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President, Chief Executive Officer and |
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December 11, 2015 |
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Clive T. Johnson |
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Director (Principal Executive Officer) |
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/s/ Mike Cinnamond |
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Senior Vice President of Finance and Chief |
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December 11, 2015 |
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Mike Cinnamond |
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Financial Officer (Principal Financial |
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Officer and Principal Accounting Officer) |
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/s/ Robert Cross |
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Chairman of the Board |
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December 11, 2015 |
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Robert Cross |
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/s/ Jerry Korpan |
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Director |
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December 11, 2015 |
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Jerry Korpan |
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Signature |
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Title |
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Date |
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/s/ Barry Rayment |
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Director and Authorized Representative in |
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December 11, 2015 |
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Barry Rayment |
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the United States |
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/s/ Robert Gayton |
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Director |
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December 11, 2015 |
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Robert Gayton |
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/s/ Bongani
Mtshisi |
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Director |
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December 11, 2015 |
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Bongani Mtshisi |
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/s/ Kevin Bullock |
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Director |
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December 11, 2015 |
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Kevin Bullock |
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/s/ Mark Connelly |
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Director |
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December 11, 2015 |
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Mark Connelly |
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EXHIBIT INDEX
Exhibit |
Description |
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4.1 |
Annual information form for the year ended December 31,
2014 dated March 27, 2015 (incorporated by reference from the Registrants
Annual Report on Form 40-F filed with the Commission on March 30, 2015) |
4.2 |
Audited consolidated financial statements of the
Registrant for the years ended December 31, 2014 and 2013 together with
the notes thereto and the auditors report thereon, (incorporated by
reference from the Registrants Annual Report on Form 40-F filed with the
Commission on March 30, 2015) |
4.3 |
Managements discussion and analysis of financial
position and results of operations for the year ended December 31, 2014
(incorporated by reference from the Registrants Annual Report on Form
40-F filed with the Commission on March 30, 2015) |
4.4 |
Management information circular of the Registrant dated
May 8, 2015 prepared in connection with the Registrants annual meeting of
shareholders held on June 12, 2015 (incorporated by reference from the
Registrants Form 6-K furnished to the Commission on May 13, 2015) |
4.5 |
Unaudited condensed interim consolidated financial
statements of the Registrant for the three and nine months ended September
30, 2015, together with the notes thereto (incorporated by reference from
the Registrants Form 6-K furnished to the Commission on November 13,
2015) |
4.6 |
Managements discussion and analysis of financial
position and results of operations for the three and nine months ended
September 30, 2015 (incorporated by reference from the Registrants Form
6-K furnished to the Commission on November 13, 2015) |
4.7 |
Press release dated May 20, 2015 (incorporated by
reference from the Registrants Form 6-K furnished to the Commission on
May 21, 2015) |
4.8 |
Press release dated June 11, 2015 (incorporated by
reference from the Registrants Form 6-K furnished to the Commission on
June 12, 2015) |
5.1 |
Consent of
PricewaterhouseCoopers LLP |
5.2 |
Consent of William Pearson* |
5.3 |
Consent of Graham Speirs* |
5.4 |
Consent of Brian Scott |
5.5 |
Consent of Mark Wanless* |
5.6 |
Consent of Shaun Crisp* |
5.7 |
Consent of Hermanus Kriel* |
5.8 |
Consent of Werner Petrick |
5.9 |
Consent of William Lytle |
5.10 |
Consent of Tom Garagan |
5.11 |
Consent of Glenn Bezuidenhout |
5.12 |
Consent of Guy Wiid |
5.13 |
Consent of Mark Turner |
5.14 |
Consent of Andrew Vigar* |
5.15 |
Consent of Peter Montano |
5.16 |
Consent of Kevin Pemberton* |
5.17 |
Consent of Vaughan Chamberlain |
5.18 |
Consent of Ben Parsons* |
5.19 |
Consent of Jonathon Priest |
5.20 |
Consent of Andrew Carter |
5.21 |
Consent of Laszlo Bodi |
5.22 |
Consent of Richard Hope* |
5.23 |
Consent of Geoff Ricks |
5.24 |
Consent of Ian Lloyd* |
5.25 |
Consent of Nic Johnson |
5.26 |
Consent of Chris Kaye* |
5.27 |
Consent of Don Tschabrun* |
5.28 |
Consent of Stephanus Coetzee* |
5.29 |
Consent of Donald Hulse |
|
* To be filed by amendment |
Consent of PricewaterhouseCoopers LLP
We hereby consent to the incorporation by reference in this registration statement on form F-10 of B2Gold Corp. of our report dated March 12, 2015 relating to the consolidated financial statements and effectiveness of internal control over financial reporting of B2Gold Corp., which appears in B2Gold Corp.’s Annual Report on Form 40-F for the year ended December 31, 2014.
/s/ PricewaterhouseCoopers LLP
Chartered Professional Accountants
Vancouver, British Columbia
December 11, 2015
CONSENT OF BRIAN SCOTT
The undersigned hereby consents to the references to, and the
information derived from the mineral resource estimates, as applicable, for the
Pavon property and the Limon Mine, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Brian Scott
|
|
Brian Scott, P.Geo. |
|
December 6, 2015 |
|
CONSENT OF WERNER PETRICK
The undersigned hereby consents to the references to, and the
information derived from, the report titled NI 43-101 Technical Report
Feasibility Study: Otjikoto Gold Project, Province of Otjozondjupa, Republic of
Namibia dated February 25, 2013, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Werner Petrick
|
|
Werner Petrick |
|
December 9, 2015 |
|
CONSENT OF WILLIAM LYTLE
The undersigned hereby consents to the references to, and the
information derived from, the reports titled (i) NI 43-101 Technical Report
Feasibility Study: Otjikoto Gold Project, Province of Otjozondjupa, Republic of
Namibia dated February 25, 2013, (ii) Fekola Gold Project, Mali, NI 43-101
Technical Report on Preliminary Economic Assessment dated June 3, 2014 and
(iii) NI 43-101 Technical Report, Feasibility Study on the Fekola Gold Project
in Mali dated June 30, 2015, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ William Lytle
|
|
William Lytle, P.E., M.Sc., B.Sc. |
|
December 11, 2015 |
|
CONSENT OF TOM GARAGAN
The undersigned hereby consents to the references to, and the
information derived from, (i) the report titled NI 43-101 Technical Report,
Feasibility Study on the Fekola Gold Project in Mali dated June 30, 2015, (ii)
the report titled Fekola Gold Project, Mali, NI 43-101 Technical Report on
Preliminary Economic Assessment dated June 3, 2014, (iii) the report titled NI
43-101 Technical Report Feasibility Study: Otjikoto Gold Project, Province of
Otjozondjupa, Republic of Namibia dated February 25, 2013, (iv) mineral
resource estimates for the Fekola Gold Project, (v) mineral resource estimates
for the Masbate Gold Project, (vi) mineral resource estimates for the Otjikoto
Mine and the Wolfshag Zone, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Tom Garagan
|
|
Tom Garagan, P.Geo., B.Sc. |
|
December 11, 2015 |
|
|
|
CONSENT OF GLENN BEZUIDENHOUT
The undersigned hereby consents to the references to, and the
information derived from, the report titled NI 43-101 Technical Report
Feasibility Study: Otjikoto Gold Project, Province of Otjozondjupa, Republic of
Namibia dated February 25, 2013, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Glenn
Bezuidenhout |
|
Glenn Bezuidenhout, Pr.Eng., FSAIMM |
|
December 7, 2015 |
|
|
|
CONSENT OF GUY WIID
The undersigned hereby consents to the references to, and the
information derived from, the reports titled (i) NI 43-101 Technical Report
Feasibility Study: Otjikoto Gold Project, Province of Otjozondjupa, Republic of
Namibia dated February 25, 2013, and (ii) Fekola Gold Project, Mali, NI 43-101
Technical Report on Preliminary Economic Assessment dated June 3, 2014, and to
the references, as applicable, to the undersigned's name included in or
incorporated by reference in the Registration Statement on Form F-10 being filed
by B2Gold Corp.
/s/ Guy Wiid |
|
Guy Wiid, Pr. Eng., M.Sc., B.Sc. |
|
December 11, 2015 |
|
|
|
CONSENT OF MARK TURNER
The undersigned hereby consents to the references to, and the
information derived from, the report titled NI 43-101 Technical Report Masbate
Gold Project Republic of the Philippines dated June 20, 2012, and to the
references, as applicable, to the undersigned's name included in or incorporated
by reference in the Registration Statement on Form F-10 being filed by B2Gold
Corp.
/s/ Mark Turner
|
|
Mark Turner, B.Eng., MAusIMM |
|
December 7, 2015 |
|
CONSENT OF PETER MONTANO
The undersigned hereby consents to the references to, and the
information derived from, (i) the report titled NI 43-101 Technical Report,
Feasibility Study on the Fekola Gold Project in Mali dated June 30, 2015 and
(ii) mineral reserve estimates for the Fekola Project and the Otjikoto Mine, and
to the references, as applicable, to the undersigned's name included in or
incorporated by reference in the Registration Statement on Form F-10 being filed
by B2Gold Corp.
/s/ Peter Montano
|
|
Peter Montano, P.E. |
|
December 8, 2015 |
|
CONSENT OF VAUGHAN CHAMBERLAIN
The undersigned hereby consents to the references to, and the
information derived from, the mineral resource estimates for the Gramalote
Project, and to the references, as applicable, to the undersigned's name
included in or incorporated by reference in the Registration Statement on Form
F-10 being filed by B2Gold Corp.
/s/ Vaughan
Chamberlain |
|
Vaughan Chamberlain, FAusIMM |
|
December 11, 2015 |
|
CONSENT OF JONATHON PRIEST
The undersigned hereby consents to the references to, and the
information derived from, the report titled Kiaka Gold Project Prefeasibility
Study dated May 23, 2012, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Jonathan
Priest |
|
Jonathan Priest, SCPM, C.Eng., MIMMM, PMP, |
|
M.Eng. |
|
December 11, 2015 |
|
CONSENT OF ANDREW CARTER
The undersigned hereby consents to the references to, and the
information derived from, the report titled Kiaka Gold Project Prefeasibility
Study dated May 23, 2012, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Andrew Carter
|
|
Andrew Carter, B.Sc., C.Eng., MIMMM, |
|
MSAIMM, SME |
|
December 11, 2015 |
|
CONSENT OF LASZLO BODI
The undersigned hereby consents to the references to, and the
information derived from, the report titled Kiaka Gold Project Prefeasibility
Study dated May 23, 2012, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Lazlo Bodi |
|
Laszlo Bodi, M.Sc., P.Eng. |
|
Principal Civil/Geotechnical Engineer |
|
Tetra Tech PWR |
|
December 8, 2015 |
|
CONSENT OF GEOFF RICKS
The undersigned hereby consents to the references to, and the
information derived from, the report titled Kiaka Gold Project Prefeasibility
Study dated May 23, 2012, and to the references, as applicable, to the
undersigned's name included in or incorporated by reference in the Registration
Statement on Form F-10 being filed by B2Gold Corp.
/s/ Geoff Ricks
|
|
Geoff Ricks, C.Env., FIMMM, Ph.D. |
|
December 11, 2015 |
|
CONSENT OF NIC JOHNSON
The undersigned hereby consents to the references to, and the
information derived from, (i) the report titled Fekola Gold Project, Mali, NI
43-101 Technical Report on Preliminary Economic Assessment dated June 3, 2014
and (ii) mineral resource estimates for the Fekola Project, and to the
references, as applicable, to the undersigned's name included in or incorporated
by reference in the Registration Statement on Form F-10 being filed by B2Gold
Corp.
/s/ Nic Johnson
|
|
Nic Johnson, MAIG |
|
December 11, 2015 |
|
CONSENT OF DONALD HULSE
The undersigned hereby consents to the references to, and the
information derived from, (i) the report titled NI 43-101 Technical Report, La
Libertad Mine, La Libertad Region, Nicaragua dated March 24, 2015 and (ii)
mineral reserve estimates for the La Libertad Project, and to the references, as
applicable, to the undersigned's name included in or incorporated by reference
in the Registration Statement on Form F-10 being filed by B2Gold Corp.
/s/ Donald Hulse
|
|
Donald Hulse, P.E. |
|
December 11, 2015 |
|
CONSENT OF WILLIAM CROWL
The undersigned hereby consents to the references to, and the
information derived from, the report titled NI 43-101 Technical Report, La
Libertad Mine, La Libertad Region, Nicaragua dated March 24, 2015, and to the
references, as applicable, to the undersigned's name included in or incorporated
by reference in the Registration Statement on Form F-10 being filed by B2Gold
Corp.
/s/ William Crowl
|
|
William Crowl, MMSA |
|
December 11, 2015 |
|
CONSENT OF DEEPAK MALHOTRA
The undersigned hereby consents to the references to, and the
information derived from, the report titled NI 43-101 Technical Report, La
Libertad Mine, La Libertad Region, Nicaragua dated March 24, 2015, and to the
references, as applicable, to the undersigned's name included in or incorporated
by reference in the Registration Statement on Form F-10 being filed by B2Gold
Corp.
/s/ Deepak
Malhotra |
|
Deepak Malhotra, Ph.D. |
|
December 11, 2015 |
|
___________________________________________________________________________________
B2GOLD CORP.
as Issuer
and
[ ]
as Trustee
___________________________________________________________________________________
Indenture
Dated as of [ ]
___________________________________________________________________________________
B2GOLD CORP.
Reconciliation and tie between Trust Indenture Act
of
1939 and Indenture, dated as of [ ]
Trust Indenture Act Section |
|
Indenture Section |
|
§ 310(a)(1) |
|
Section 607 |
|
|
(a)(2) |
|
Section 607 |
|
|
(b) |
|
Section 608 |
|
§ 312(c) |
|
Section 701 |
|
§ 314(a) |
|
Section 703 |
|
|
(a)(4) |
|
Section 904 |
|
|
(c)(1) |
|
Section 102 |
|
|
(c)(2) |
|
Section 102 |
|
|
(e) |
|
Section 102 |
|
§ 315(b) |
|
Section 601 |
|
§ 316(a)(last sentence) |
|
Section 101(Outstanding) |
|
|
(a)(1)(A) |
|
Section 502, Section 512 |
|
|
(a)(1)(B) |
|
Section 513 |
|
|
(b) |
|
Section 508 |
|
|
(c) |
|
Section 104(e) |
|
§ 317(a)(1) |
|
Section 503 |
|
|
(a)(2) |
|
Section 504 |
|
|
(b) |
|
Section 903 |
|
§ 318(a) |
|
Section 111 |
|
TABLE OF CONTENTS*
|
|
Page |
|
|
|
ARTICLE ONE DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION |
1 |
|
|
|
SECTION 101. |
Definitions |
1 |
SECTION 102. |
Compliance Certificates and Opinions |
8 |
SECTION 103. |
Form of Documents Delivered to
Trustee |
9 |
SECTION 104. |
Acts of Holders |
9 |
SECTION 105. |
Notices, Etc. to Trustee and
Company |
10 |
SECTION 106. |
Notice to Holders; Waiver |
10 |
SECTION 107. |
Effect of Headings and Table of
Contents |
11 |
SECTION 108. |
Successors and Assigns |
11 |
SECTION 109. |
Separability Clause |
11 |
SECTION 110. |
Benefits of Indenture |
11 |
SECTION 111. |
Governing Law |
11 |
SECTION 112. |
Legal Holidays |
11 |
SECTION 113. |
Agent for Service; Submission
to Jurisdiction; Waiver of Immunities |
12 |
SECTION 114. |
Conversion of Currency |
12 |
SECTION 115. |
Currency Equivalent |
13 |
SECTION 116. |
No Recourse Against Others |
13 |
SECTION 117. |
Conflict with Trust Indenture
Act |
13 |
|
|
|
ARTICLE TWO SECURITY FORMS |
13 |
|
|
|
SECTION 201. |
Forms Generally |
13 |
SECTION 202. |
Form of Trustees Certificate of Authentication |
14 |
SECTION 203. |
Securities Issuable in Global
Form |
14 |
|
|
|
ARTICLE THREE THE SECURITIES |
14 |
|
|
|
SECTION 301. |
Amount Unlimited; Issuable in
Series |
14 |
SECTION 302. |
Denominations |
17 |
SECTION 303. |
Execution, Authentication,
Delivery and Dating |
17 |
SECTION 304. |
Temporary Securities |
19 |
SECTION 305. |
Registration, Registration of
Transfer and Exchange |
21 |
SECTION 306. |
Mutilated, Destroyed, Lost and Stolen
Securities |
23 |
SECTION 307. |
Payment of Principal, Premium
and Interest; Interest Rights Preserved; Optional Interest Reset |
24 |
SECTION 308. |
Optional Extension of Stated Maturity |
26 |
SECTION 309. |
Persons Deemed Owners |
26 |
SECTION 310. |
Cancellation |
27 |
SECTION 311. |
Computation of Interest |
27 |
SECTION 312. |
Currency and Manner of Payments in Respect of
Securities |
27 |
SECTION 313. |
Appointment and Resignation of
Successor Exchange Rate Agent |
29 |
|
|
|
ARTICLE FOUR SATISFACTION AND
DISCHARGE |
30 |
|
|
|
SECTION 401. |
Satisfaction and Discharge of
Indenture |
30 |
SECTION 402. |
Application of Trust Money |
31 |
__________________________________
*
This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
i
ARTICLE FIVE REMEDIES |
31 |
|
|
|
SECTION 501. |
Events of Default |
31 |
SECTION 502. |
Acceleration of Maturity; Rescission and
Annulment |
32 |
SECTION 503. |
Collection of Indebtedness and
Suits for Enforcement by Trustee |
33 |
SECTION 504. |
Trustee May File Proofs of Claim |
34 |
SECTION 505. |
Trustee May Enforce Claims
Without Possession of Securities |
34 |
SECTION 506. |
Application of Money Collected |
34 |
SECTION 507. |
Limitation on Suits |
35 |
SECTION 508. |
Unconditional Right of Holders to Receive
Principal, Premium and Interest |
35 |
SECTION 509. |
Restoration of Rights and
Remedies |
35 |
SECTION 510. |
Rights and Remedies Cumulative |
36 |
SECTION 511. |
Delay or Omission Not Waiver |
36 |
SECTION 512. |
Control by Holders |
36 |
SECTION 513. |
Waiver of Past Defaults |
36 |
SECTION 514. |
Waiver of Stay or Extension Laws |
36 |
SECTION 515. |
Undertaking for Costs |
36 |
|
|
|
ARTICLE SIX THE TRUSTEE |
37 |
|
|
|
SECTION 601. |
Notice of Defaults |
37 |
SECTION 602. |
Certain Rights of Trustee |
37 |
SECTION 603. |
Trustee Not Responsible for
Recitals or Issuance of Securities |
38 |
SECTION 604. |
May Hold Securities |
38 |
SECTION 605. |
Money Held in Trust |
38 |
SECTION 606. |
Compensation and Reimbursement |
38 |
SECTION 607. |
Corporate Trustee Required;
Eligibility; Conflicting Interests |
39 |
SECTION 608. |
Resignation and Removal; Appointment of
Successor |
39 |
SECTION 609. |
Acceptance of Appointment by
Successor |
40 |
SECTION 610. |
Merger, Conversion, Consolidation or Succession
to Business |
41 |
SECTION 611. |
Appointment of Authenticating
Agent |
41 |
|
|
|
ARTICLE SEVEN HOLDERS LISTS AND
REPORTS BY TRUSTEE AND THE COMPANY |
42 |
|
|
|
SECTION 701. |
Disclosure of Names and
Addresses of Holders |
42 |
SECTION 702. |
Reports by Trustee |
42 |
SECTION 703. |
Reports by the Company |
43 |
SECTION 704. |
The Company to Furnish Trustee Names and
Addresses of Holders |
43 |
|
|
|
ARTICLE EIGHT SUPPLEMENTAL INDENTURES |
44 |
|
|
|
SECTION 801. |
Supplemental Indentures Without Consent of
Holders |
44 |
SECTION 802. |
Supplemental Indentures with
Consent of Holders |
45 |
SECTION 803. |
Execution of Supplemental Indentures |
46 |
SECTION 804. |
Effect of Supplemental
Indentures |
46 |
SECTION 805. |
Conformity with Trust Indenture Act |
46 |
SECTION 806. |
Reference in Securities to
Supplemental Indentures |
46 |
SECTION 807. |
Notice of Supplemental Indentures |
46 |
|
|
|
ARTICLE NINE COVENANTS |
46 |
|
|
|
SECTION 901. |
Payment of Principal, Premium, if any, and
Interest |
46 |
SECTION 902. |
Maintenance of Office or Agency |
47 |
SECTION 903. |
Money for Securities Payments to Be Held in
Trust |
48 |
SECTION 904. |
Statement as to Compliance |
49 |
ii
SECTION 905. |
Payment of Taxes and Other Claims |
49 |
SECTION 906. |
Maintenance of
Properties |
49 |
SECTION 907. |
Corporate Existence |
49 |
SECTION 908. |
Waiver of Certain Covenants |
49 |
SECTION 909. |
Consolidation, Amalgamation, Merger and Sale of
Assets |
49 |
|
|
|
ARTICLE TEN REDEMPTION OF SECURITIES |
50 |
|
|
|
SECTION 1001. |
Applicability of Article |
50 |
SECTION 1002. |
Election to Redeem; Notice to
Trustee |
50 |
SECTION 1003. |
Selection by Trustee of Securities to Be
Redeemed |
50 |
SECTION 1004. |
Notice of Redemption |
50 |
SECTION 1005. |
Deposit of Redemption Price |
51 |
SECTION 1006. |
Securities Payable on
Redemption Date |
51 |
SECTION 1007. |
Securities Redeemed in Part |
52 |
|
|
|
ARTICLE ELEVEN SINKING FUNDS |
52 |
|
|
|
SECTION 1101. |
Applicability of Article |
52 |
SECTION 1102. |
Satisfaction of Sinking Fund
Payments with Securities |
52 |
SECTION 1103. |
Redemption of Securities for Sinking Fund |
53 |
|
|
|
ARTICLE TWELVE REPAYMENT AT OPTION OF HOLDERS |
53 |
|
|
|
SECTION 1201. |
Applicability of Article |
53 |
SECTION 1202. |
Repayment of Securities |
53 |
SECTION 1203. |
Exercise of Option |
54 |
SECTION 1204. |
When Securities Presented for
Repayment Become Due and Payable |
54 |
SECTION 1205. |
Securities Repaid in Part |
55 |
|
|
|
ARTICLE THIRTEEN DEFEASANCE AND COVENANT
DEFEASANCE |
55 |
|
|
|
SECTION 1301. |
Option to Effect Defeasance or Covenant
Defeasance |
55 |
SECTION 1302. |
Defeasance and Discharge |
55 |
SECTION 1303. |
Covenant Defeasance |
55 |
SECTION 1304. |
Conditions to Defeasance or
Covenant Defeasance |
55 |
SECTION 1305. |
Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions |
57 |
SECTION 1306. |
Reinstatement |
57 |
|
|
|
ARTICLE FOURTEEN MEETINGS OF
HOLDERS OF SECURITIES |
58 |
|
|
|
SECTION 1401. |
Purposes for Which Meetings May
Be Called |
58 |
SECTION 1402. |
Call, Notice and Place of Meetings |
58 |
SECTION 1403. |
Persons Entitled to Vote at
Meetings |
58 |
SECTION 1404. |
Quorum; Action |
58 |
SECTION 1405. |
Determination of Voting Rights;
Conduct and Adjournment of Meetings |
59 |
SECTION 1406. |
Counting Votes and Recording Action of Meetings |
60 |
iii
INDENTURE, dated as of [ ], between B2Gold Corp., a
corporation duly organized and existing under the laws of the Province of
British Columbia (herein called the Company), having its principal office at
Suite 3100, Three Bentall Centre, 595 Burrard Street, Vancouver, British
Columbia, Canada, V7X 1J1 and [ ], a [ ] banking
corporation, as trustee (herein called the Trustee).
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein called the
Securities), in an unlimited aggregate principal amount to be issued from time
to time in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 101. Definitions. For all
purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(2) unless otherwise
defined in this Indenture or the context otherwise requires, all terms used
herein without definition which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) the words
herein, hereof and hereunder and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
(4) references to
Article or Section or other subdivision herein are references to an Article,
Section or other subdivision of the Indenture, unless the context otherwise
requires.
Unless the context otherwise requires, the terms defined in
this Section 101 shall for all purposes of this Indenture have the meanings
hereinafter set forth:
Act, when used with respect to any Holder, has the meaning
specified in Section 104.
Affiliate of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
control when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms controlling and controlled have meanings correlative to the
foregoing.
1
Authenticating Agent means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate
Securities.
Authorized Newspaper means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
Bankruptcy Law has the meaning specified in Section 501.
Bankruptcy Order has the meaning specified in Section 501.
Bearer Security means any Security except a Registered
Security.
Board of Directors means the board of directors of the
Company or any duly authorized committee of such board.
Board Resolution means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
calculation period has the meaning specified in Section 311.
Canadian GAAP means generally accepted accounting principles
in effect in Canada including the accounting recommendations published or
incorporated by reference, from time to time, in the Handbook of the Canadian
Institute of Chartered Accountants.
Clearstream means Clearstream Banking, société anonyme, or
its successor.
Commission means the U.S. Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
Common Depositary has the meaning specified in Section 304.
Company means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
Company shall mean such successor Person.
Company Request or Company Order means a written request or
order signed in the name of the Company by the Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
Component Currency has the meaning specified in Section 312.
Conversion Date has the meaning specified in Section 312(d).
2
Conversion Event means the cessation of use of (i) a Foreign
Currency (other than the Euro or other currency unit) both by the government of
the country which issued such Currency and by a central bank or other public
institution of or within the international banking community for the settlement
of transactions, (ii) the Euro or (iii) any currency unit (or composite
currency) other than the Euro for the purposes for which it was established.
Corporate Trust Office means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business may be administered, which office on the date of execution of this
Indenture is located at .
corporation includes corporations, associations, companies
and business trusts.
coupon means any interest coupon appertaining to a Bearer
Security.
covenant defeasance has the meaning specified in Section
1303.
Currency means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation, the Euro,
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
Custodian has the meaning specified in Section 501.
Default means any event which is, or after notice or passage
of time or both would be, an Event of Default.
Defaulted Interest has the meaning specified in Section 307.
defeasance has the meaning specified in Section 1302.
Depositary means with respect to the Securities of any series
issuable or issued in the form of one or more Registered Securities, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Depositary shall mean or include
each Person who is then a Depositary hereunder, and, if at any time there is
more than one such Person, Depositary as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Registered
Securities of that series.
Dollar or $ means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
Dollar Equivalent of the Currency Unit has the meaning
specified in Section 312(g).
Dollar Equivalent of the Foreign Currency has the meaning
specified in Section 312(f).
Election Date has the meaning specified in Section 312(h).
Euro means the single currency of the participating member
states from time to time of the European Union described in legislation of the
European Counsel for the operation of a single unified European currency
(whether known as the Euro or otherwise).
Euroclear means Euroclear Bank S.A./N.V., or its successor as
operator of the Euroclear System.
Event of Default has the meaning specified in Section 501.
Exchange Act means the United States Securities Exchange Act
of 1934, as amended.
Exchange Date has the meaning specified in Section 304.
3
Exchange Rate Agent means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York clearing house bank, designated pursuant to
Section 301 or 313.
Exchange Rate Officers Certificate means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
Extension Notice has the meaning specified in Section 308.
Extension Period has the meaning specified in Section 308.
Federal Bankruptcy Code means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
Final Maturity has the meaning specified in Section 308.
First Currency has the meaning specified in Section 115.
Foreign Currency means any Currency other than Currency of
the United States of America.
Government Obligations means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (a) direct obligations of the government which issued the Currency in which
the Securities of a particular series are payable or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of a holder of a depository receipt;
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest or principal of the
Government Obligation evidenced by such depository receipt.
Holder means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
Indebtedness means obligations for money borrowed whether or
not evidenced by notes, bonds, debentures or other similar evidences of
indebtedness.
Indenture means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more
than one Person is acting as Trustee under this instrument, Indenture shall
mean, with respect to any one or more series of Securities for which such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
4
Indexed Security means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
interest, when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
Interest Payment Date, when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
Judgment Currency has the meaning specified in Section 114.
Lien means any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind created, incurred or assumed in order to
secure payment of Indebtedness.
mandatory sinking fund payment has the meaning specified in
Section 1101.
Market Exchange Rate means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or another principal market for the Currency in question,
or such other quotations as the Exchange Rate Agent shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent, if there is more than one
market for dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be that upon
which a non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such securities.
Maturity, when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
Officers Certificate means a certificate signed by the
Chairman, the Chief Executive Officer, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee.
Optional Reset Date has the meaning specified in Section 307.
optional sinking fund payment has the meaning specified in
Section 1101.
5
Original Issue Discount Security means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
Original Stated Maturity has the meaning specified in Section
308.
Other Currency has the meaning specified in Section 115.
Outstanding, when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities, or
portions thereof, for whose payment or redemption or repayment at the option of
the Holder money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities,
except to the extent provided in Sections 1302 and 1303, with respect to which
the Company has effected defeasance and/or covenant defeasance as provided in
Article Thirteen; and
(iv) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a protected purchaser (as defined in Article 8 of the UCC) in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder or are present at a meeting of Holders for quorum purposes, and for
the purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date such
Security is originally issued as set forth in an Exchange Rate Officers
Certificate delivered to the Trustee, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee certifies to the
Trustee the pledgees right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
Paying Agent means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
6
Person means any individual, corporation, body corporate,
partnership, limited partnership, limited liability partnership, joint venture,
limited liability company, unlimited liability company, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Section 301 and Section 902.
Predecessor Security means, with respect to any
Security, every previous Security evidencing all or a portion of the same
Indebtedness as that evidenced by such particular Security, and, for the
purposes of this definition, any Security authenticated and delivered under
Section 306 in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same Indebtedness as the lost, destroyed or stolen Security.
rate(s) of exchange has the meaning specified in Section 114.
Redemption Date, when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
Redemption Price, when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture, plus accrued and unpaid interest thereon to the
Redemption Date.
Registered Security means any Security registered in the
Security Register.
Regular Record Date for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
Repayment Date means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
Required Currency has the meaning specified in Section 114.
Reset Notice has the meaning specified in Section 307.
Responsible Officer, when used with respect to the Trustee,
means any officer assigned to the Corporate Trust Office of the Trustee having
direct responsibility for the administration of this Indenture, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
Securities has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time
there is more than one Person acting as Trustee under this Indenture,
Securities with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
Security Register and Security Registrar have the
respective meanings specified in Section 305.
Special Record Date for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
Specified Amount has the meaning specified in Section 312.
Stated Maturity, when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308 (if applicable).
7
Subsequent Interest Period has the meaning specified in
Section 307.
Trust Indenture Act or TIA means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed except as provided in Section 805.
Trustee means the Person named as the Trustee in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
Trustee shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such
Person, Trustee as used with respect to the Securities of any series shall
mean only the Trustee with respect to Securities of that series.
UCC means the New York uniform commercial code in effect from
time to time.
United States means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
Valuation Date has the meaning specified in Section 312(c).
Vice President, when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title vice president.
Yield to Maturity means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and
Opinions. Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 904) shall include:
(1) a statement that
each individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a statement
that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as
to whether, in the opinion of each such individual, such covenant or condition
has been complied with.
8
SECTION 103. Form of Documents Delivered
to Trustee. In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Any certificate or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of, or representations by, an accountant or firm of
accountants in the employ of the Company, unless, in the case of a certificate
or an opinion of an officer of the Company, such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which such
certificate or opinion may be based are erroneous. Any certificate or opinion of
any independent firm of public accountants filed with the Trustee shall contain
a statement that such firm is independent.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of such series may, alternatively, be embodied in and evidenced by
the record of Holders of Securities of such series voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
Act of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section 104. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1406.
(b) The fact and date of the execution by
any Person of any such instrument or writing may be proved in any reasonable
manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers
of Registered Securities held by any Person, and the date of holding the same,
shall be proved by the Security Register.
(d) The principal amount and serial numbers
of Bearer Securities held by any Person, and the date of holding the same, may
be proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any other
manner that the Trustee deems sufficient.
9
(e) If the Company shall solicit from the
Holders of Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company, shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, Etc. to Trustee and
Company. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by
any Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing or sent by facsimile to the Trustee
at its Corporate Trust Office, or
(2) the Company by
the Trustee or by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or sent by overnight courier to the Company (mailed
or delivered to its Secretary at its principal office specified in the first
paragraph of this Indenture)
SECTION 106. Notice to Holders;
Waiver. Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
10
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be directed by the Company shall be deemed
to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and in such other city or
cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given as directed by the Company shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table
of Contents. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In
case any provision in this Indenture or in any Security or coupon shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, any Authenticating
Agent, any Paying Agent, any Securities Registrar and their successors hereunder
and the Holders of Securities or coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This
Indenture and the Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York. This Indenture is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any
case where any Interest Payment Date, Redemption Date, sinking fund payment date
or Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of any Security or coupon other than a provision in the Securities
of any series which specifically states that such provision shall apply in lieu
of this Section 112), payment of principal (or premium, if any) or interest, if
any, need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date or sinking fund payment date, or
at the Stated Maturity or Maturity; provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
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SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By
the execution and delivery of this Indenture, the Company (i) irrevocably
designates and appoints [ ] as its authorized agent upon which
process may be served in any suit, action or proceeding arising out of or
relating to the Securities or this Indenture that may be instituted in any
United States federal or New York state court in The City of New York or brought
under federal or state securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder) or, subject to
Section 507, any Holder of Securities in any United States federal or New York
state court in The Borough of Manhattan, The City of New York, (ii) submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding, and (iii) agrees that service of process upon [ ] with
written notice of said service to the Company to be given in the manner provided
in Section 105, shall be deemed in every respect effective service of process
upon the Company in any such suit, action or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of [ ] in full force and effect so long
as any of the Securities shall be Outstanding or any amounts shall be payable in
respect of any Securities or coupons.
The Company irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of venue of any such action, suit or proceeding in any such court
or any appellate court with respect thereto and irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of any such action, suit or proceeding in any such court.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
SECTION 114. Conversion of Currency.
The Company covenants and agrees that the following provisions shall apply to
conversion of Currency in the case of the Securities and this Indenture to the
fullest extent permitted by applicable law:
(a) (i) If for the
purposes of obtaining judgment in, or enforcing the judgment of, any court in
any country, it becomes necessary to convert into a currency (the Judgment
Currency) an amount due or contingently due in any other currency under the
Securities of any series and this Indenture (the Required Currency), then the
conversion shall be made at the rate of exchange prevailing on the Business Day
before the day on which the final judgment is given or the order of enforcement
is made, as the case may be (unless a court shall otherwise determine).
(ii)
If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment referred to in (i)
above is given or an order of enforcement is made, as the case may be (or such
other date as a court shall determine), and the date of receipt of the amount
due, the Company shall pay such additional (or, as the case may be, such lesser)
amount, if any, as may be necessary so that the amount paid in the Judgment
Currency when converted at the rate of exchange prevailing on the date of
receipt will produce the amount in the Required Currency originally due.
(b) In the event of the winding-up of the
Company at any time while any amount or damages owing under the Securities and
this Indenture, or any judgment or order rendered in respect thereof, shall
remain unpaid or outstanding, the Company shall indemnify and hold the Holders
and the Trustee harmless against any deficiency arising or resulting from any
variation in rates of exchange between (1) the date as of which the equivalent
of the amount in the Required Currency (other than under this Subsection (b)) is
calculated for the purposes of such winding-up and (2) the final date for the
filing of proofs of claim in such winding-up. For the purpose of this Subsection
(b) the final date for the filing of proofs of claim in the winding-up of the
Company shall be the date fixed by the liquidator or otherwise in accordance
with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Company may be
ascertained for such winding-up prior to payment by the liquidator or otherwise
in respect thereto.
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(c) The obligations contained in Subsections
(a)(ii) and (b) of this Section 114 shall constitute separate and independent
obligations of the Company from its other obligations under the Securities and
this Indenture, shall give rise to separate and independent causes of action
against the Company, shall apply irrespective of any waiver or extension granted
by any Holder or Trustee from time to time and shall continue in full force and
effect notwithstanding any judgment or order or the filing of any proof of claim
in the winding-up of the Company for a liquidated sum in respect of amounts due
hereunder (other than under Subsection (b) above) or under any such judgment or
order. Any such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or the applicable
liquidator. In the case of Subsection (b) above, the amount of such deficiency
shall not be deemed to be reduced by any variation in rates of exchange
occurring between the said final date and the date of any liquidating
distribution.
(d) The term rate(s) of exchange shall
mean the Bank of Canada noon rate for purchases on the relevant date of the
Required Currency with the Judgment Currency, as reported by Telerate on screen
3194 (or such other means of reporting the Bank of Canada noon rate as may be
agreed upon by each of the parties to this Indenture) and includes any premiums
and costs of exchange payable. [NTD: Alternatively use Market Exchange
Rate in this section.]
(e) The Trustee shall have no duty or
liability with respect to monitoring or enforcing this Section 114.
SECTION 115. Currency
Equivalent. Except as otherwise provided in this Indenture, for purposes of
the construction of the terms of this Indenture or of the Securities, in the
event that any amount is stated herein in the Currency of one nation (the First
Currency), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the Other Currency) which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported on the Exchange Rates Daily Noon Rates page of the
website of the Bank of Canada (or such other means of reporting the Bank of
Canada noon rate as may be agreed upon by each of the parties to this Indenture)
on the date of determination.
SECTION 116. No Recourse Against
Others. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future shareholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for
the issue of the Securities.
SECTION 117. Conflict with Trust
Indenture Act. If and to the extent that any provision hereof limits,
qualifies or conflicts with another provision that is required or deemed to be
included in this Indenture by any of the provisions of the Trust Indenture Act,
such required or deemed provision shall control.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. The
Registered Securities, if any, of each series and the Bearer Securities, if any,
of each series and related coupons, if any, shall be in substantially the forms
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons. If the forms of Securities or coupons of any series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities or coupons. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security. The Trustees certificate of authentication
on all Securities shall be in substantially the form set forth in Section 202.
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SECTION 202. Form of Trustees
Certificate of Authentication. Subject to Section 611, the Trustees
certificate of authentication shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
Dated: ____________________________________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee |
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By |
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Authorized Officer |
SECTION 203. Securities Issuable in
Global Form. If Securities of or within a series are issuable in global
form, as specified and contemplated by Section 301, then any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in the manner and upon instructions as
provided in this Indenture. The Trustee shall deliver and redeliver any Security
in global form in the manner and upon instructions as provided in this
Indenture. If a Company Order pursuant to Section 303 or Section 304 has been or
simultaneously is delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Holder. Notwithstanding the provisions of Section 309, the Company,
the Trustee and any agent of the Company or the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a
permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (ii) in the case of a permanent global Security in bearer form,
Euroclear or Clearstream.
A global Security may be in substantially the form attached as
Exhibit A hereto or may be in any form established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable
in Series. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which, if so
provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
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(1) the title of the
Securities of the series (which shall distinguish the Securities of such series
from the Securities of all other series, except to the extent that additional
Securities of an existing series are being issued);
(2) the aggregate
principal amount of the Securities of the series and any limit upon the
aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 304,
305, 306, 806, 1007 or 1205) and, in the event that no limit upon the aggregate
principal amount of the Securities of that series is specified, the Company
shall have the right, subject to any terms, conditions or other provisions
specified pursuant to this Section 301 with respect to the Securities of such
series, to re-open such series for the issuance of additional Securities of such
series from time to time;
(3) the date
or dates, or the method by which such date or dates will be determined or
extended, on which the principal of and premium, if any, on the Securities of
the series is payable or the method by which such date or dates shall be
determined or extended;
(4) the rate or
rates at which the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, whether such interest
shall be payable in cash or additional Securities of the same series or shall
accrue and increase the aggregate principal amount outstanding of such series
(including if such Securities were originally issued at a discount), the
date or dates from which such interest shall accrue, or the method by which such
date or dates shall be determined, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, and the basis
upon which interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
(5) the place or
places, if any, other than the Corporate Trust Office, where the principal of,
premium, if any, and interest on Securities of the series shall be payable,
where any Registered Securities of the series may be surrendered for
registration of transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and, if different
than the location specified in Section 105, the place or places where notices or
demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(6) the period or
periods within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company, if the Company is to have
that option;
(7) the obligation,
if any, of the Company to redeem, repay or purchase Securities of the series
pursuant to any sinking fund, amortization or analogous provisions or at the
option of a Holder thereof, and the period or periods within which, the price or
prices at which, the Currency in which, and other terms and conditions upon
which Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(8) if other than
denominations of $1,000 and any integral multiple thereof, the denomination or
denominations in which any Registered Securities of the series shall be issuable
and, if other than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than
the Trustee, the identity of each Security Registrar and/or Paying Agent;
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(10) if other than
the principal amount thereof, the portion of the principal amount of Securities
of the series that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the method by which such portion
shall be determined;
(11) if other than
Dollars, the Foreign Currency in which payment of the principal of, premium, if
any, or interest on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(12) if the amount
of payment of principal of, premium, if any, or interest on the Securities of
the series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;
(13) if the
principal of, premium, if any, or interest on the Securities of the series are
to be payable, at the election of the Company or a Holder thereof, in a Currency
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election Date), and
the terms and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable without such election and the
Currency in which such Securities are to be so payable if such election is made,
in each case in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(14) the designation
of the initial Exchange Rate Agent, if any;
(15) the
applicability, if any, of Sections 1302 and/or 1303 to the Securities of the
series and any provisions in modification of, in addition to or in lieu of any
of the provisions of Article Thirteen that shall be applicable to the Securities
of the series;
(16) provisions, if
any, granting special rights to the Holders of Securities of the series upon the
occurrence of such events as may be specified;
(17) any deletions
from, modifications of or additions to the Events of Default (including any
deletions from, modifications of or additions to Section 908, any change in the
right of the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable, or any addition or change in the
provisions set forth in Article Five) with respect to Securities of the series;
(18) any deletions
from, modifications or additions to the covenants set forth in Article Nine
which applies to Securities of the series;
(19) whether
Securities of the series are to be issuable as Registered Securities, Bearer
Securities (with or without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Securities of the series, whether any Securities of
the series are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in the
manner provided in Section 305, whether Registered Securities of the series may
be exchanged for Bearer Securities of the series (if permitted by applicable
laws and regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of such series, and the circumstances under which and
the place or places where any such exchanges may be made and if Securities of
the series are to be issuable in global form, the identity of the Depositary
therefor;
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(20) the date as of
which any Bearer Securities of the series and any temporary global Security
representing Outstanding Securities of the series shall be dated if other than
the date of original issuance of the first Security of the series to be issued;
(21) the Person to
whom any interest on any Registered Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they severally
mature, and the extent to which, or the manner in which, any interest payable on
a temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(22) if Securities
of the series are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the
form and/or terms of such certificates, documents or conditions;
(23) Dollar
Equivalent of the Currency Unit if the Securities of the series are to be
convertible into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be so
convertible or exchangeable;
(24) whether and
under what circumstances the Company will pay additional amounts to non-United
States Holders in respect of any tax assessment or governmental charge;
(25) any restriction
or condition on the transferability of the Securities of such series;
(26) any other
terms, conditions, rights and preferences (or limitations on such rights and
preferences) relating to the series (which terms shall not be inconsistent with
the requirements of the Trust Indenture Act, but may modify, amend, supplement
or delete any of the terms of this Indenture with respect to such series).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers
Certificate setting forth the terms of the series.
SECTION 302. Denominations. The
Securities of each series shall be issuable in such denominations as shall be
specified as contemplated by Section 301. With respect to Securities of any
series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication,
Delivery and Dating. The Securities and any coupons appertaining thereto
shall be executed on behalf of the Company by its Chairman, its Chief Executive
Officer, its President or a Vice President together with any one of the
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer of
the Company. The signature of any of these officers on the Securities or coupons
may be the manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
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Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States or Canada;
provided further that, unless otherwise specified with respect to any
series of Securities pursuant to Section 301, a Bearer Security may be delivered
in connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate in the form set forth in
Exhibit B-1 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, stated maturity, date of
issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion or Opinions
of Counsel stating:
(a) that the form or
forms of such Securities and any coupons have been established in conformity
with the provisions of this Indenture;
(b) that the terms
of such Securities and any coupons have been established in conformity with the
provisions of this Indenture;
(c) that such
Securities, together with any coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and in the manner and
subject to any conditions specified in such Opinion of Counsel, will constitute
the legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to or
affecting the enforcement of creditors rights, to general equitable principles
and to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and any coupons;
(d) that all laws
and requirements in respect of the execution and delivery by the Company of such
Securities, any coupons, and of the supplemental indentures, if any, have been
complied with and that authentication and delivery of such Securities and any
coupons and the execution and delivery of the supplemental indenture, if any, by
the Trustee will not violate the terms of the Indenture;
(e) that the Company
has the corporate power to issue such Securities and any coupons and has duly
taken all necessary corporate action with respect to such issuance; and
(f) that the
issuance of such Securities and any coupons will not contravene the articles of
incorporation or amalgamation or by-laws of the Company, or result in any
violation of any of the terms or provisions of any law or regulation.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs
prior to or at the time of issuance of each Security, but such documents shall
be delivered prior to or at the time of issuance of the first Security of such
series.
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The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustees own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon endorsed thereon shall entitle the Holder
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided in Section 202 duly executed by the Trustee
by manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never entitle the
Holder to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may
execute, and upon receipt of a Company Order, the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive or global Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more coupons or without coupons and in all cases with such appropriate
insertions, omissions, substitutions and other variations as the officers of the
Company, executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor and evidencing the same indebtedness; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; provided further that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London, England office of a Depositary or common
depositary (the Common Depositary), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the Exchange Date), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security and evidencing the same indebtedness,
executed by the Company. On or after the Exchange Date, such temporary global
Security shall be surrendered by the Common Depositary to the Trustee, as the
Companys agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor and evidencing the
same indebtedness as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by Clearstream as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B-2 to this Indenture (or in
such other form as may be established pursuant to Section 301); provided
further that definitive Bearer Securities shall be delivered in exchange for
a portion of a temporary global Security only in compliance with the
requirements of Section 303.
19
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor and evidencing the same indebtedness following the Exchange
Date when the account holder instructs Euroclear or Clearstream, as the case may
be, to request such exchange on his behalf and delivers to Euroclear or
Clearstream, as the case may be, a certificate in the form set forth in Exhibit
B-1 to this Indenture (or in such other form as may be established pursuant to
Section 301), dated no earlier than 15 days prior to the Exchange Date, copies
of which certificate shall be available from the offices of Euroclear and
Clearstream, the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or
Clearstream. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered only outside
the United States and Canada.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor and evidencing the same indebtedness authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary global Security on an Interest Payment Date
for Securities of such series occurring prior to the applicable Exchange Date
shall be payable to Euroclear and Clearstream on such Interest Payment Date upon
delivery by Euroclear and Clearstream to the Trustee of a certificate or
certificates in the form set forth in Exhibit B-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), for credit without
further interest thereon on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or Clearstream, as the case may be, a certificate dated
no earlier than 15 days prior to the Interest Payment Date occurring prior to
such Exchange Date in the form set forth in Exhibit B-1 to this Indenture (or in
such other form as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304 and of the third paragraph of Section 303 and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor and evidencing the
same indebtedness on the Exchange Date or the date of certification if such date
occurs after the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of principal
of, premium, if any, or interest owing with respect to a beneficial interest in
a temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream and
not paid as herein provided shall be returned to the Trustee no later than one
month prior to the expiration of two years after such Interest Payment Date in
order to be repaid to the Company in accordance with Section 1003.
20
SECTION 305. Registration, Registration
of Transfer and Exchange. The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register for each series of Registered
Securities (the registers maintained in the Corporate Trust Office of the
Trustee and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the Security Register) in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Security Register shall be open to inspection
by the Trustee. The Trustee is hereby initially appointed as security registrar
(the Security Registrar) for the purpose of registering Registered Securities
and transfers of Registered Securities as herein provided. The Company shall
have the right to remove and replace from time to time the Security Registrar
for any series of Securities; provided, however, that no such removal or
replacement shall be effective until a successor Security Registrar with respect
to such series of Registered Securities shall have been appointed by the Company
and shall have accepted such appointment by the Company. In the event that the
Trustee shall not be or shall cease to be the Security Registrar with respect to
a series of Securities, it shall have the right to examine the Security Register
for such series at all reasonable times. There shall be only one Security
Register for each series of Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more replacement
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor and evidencing the same
indebtedness.
At the option of the Holder, Registered Securities of any
series may be exchanged for other replacement Registered Securities of the same
series, of any authorized denomination and of a like aggregate principal amount
and tenor and evidencing the same indebtedness, upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities, which the
Holder making the exchange is entitled to receive. Unless otherwise specified
with respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that interest represented
by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
21
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph and the two following paragraphs. If any
beneficial owner of an interest in a permanent global Security is entitled to
exchange such interest for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided in
the permanent global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such interest
may be so exchanged, the Company shall deliver to the Trustee definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owners interest in such permanent global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered by the Depositary
for such permanent global Security to the Trustee, as the Companys agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor and evidencing the same indebtedness
as the portion of such permanent global Security to be exchanged which, unless
the Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any location
in the United States or Canada. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, then (in the case of clause (i)) interest or (in the case of
clause (ii)) Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person who was the Holder of such permanent global Security at the close of
business on the relevant Regular Record Date or Special Record Date, as the case
may be.
If at any time the Depositary for Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for Securities of such series or if at any time the Depositary for global
Securities for such series shall no longer be a clearing agency registered as
such under the Exchange Act, the Company shall appoint a successor Depositary
with respect to the Securities for such series. If a successor to the Depositary
for Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, the
Companys election pursuant to Section 301 shall no longer be effective with
respect to the Securities for such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver replacement
Securities of such series in definitive registered form, in authorized
denominations and in an aggregate principal amount equal to the principal amount
of the global Security or Securities representing such series and evidencing the
same indebtedness in exchange for such global Security or Securities. The
provisions of the last sentence of the immediately preceding paragraph shall be
applicable to any exchange pursuant to this paragraph.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
global Securities shall no longer be represented by such global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver replacement Securities
of such series in definitive registered form, in authorized denominations and in
an aggregate principal amount equal to the principal amount of the global
Security or Securities representing such series and evidencing the same
indebtedness in exchange for such global Security or Securities. The provisions
of the last sentence of the second preceding paragraph shall be applicable to
any exchange pursuant to this paragraph.
Upon the exchange of a global Security for Securities in
definitive registered form, such global Security shall be cancelled by the
Trustee. Securities issued in exchange for a global Security pursuant to this
Section 305 shall be registered in such names and in such authorized
denominations as the Depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
22
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 806, 1007 or 1205 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 1003 or 1103 and ending at the close
of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, (C) if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption; (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part; (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption; or (iv) to issue,
register the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a replacement Security of the same series and of like tenor and
principal amount and evidencing the same indebtedness, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security;
provided, however, that any Bearer Security or any coupon shall be
delivered only outside the United States and Canada; and provided further
that all Bearer Securities shall be delivered and received in person.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a protected purchaser (as defined in Article 8 of the UCC), the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security for which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a replacement Security
of the same series and of like tenor and principal amount and evidencing the
same indebtedness and, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains; provided,
however, that any Bearer Security or any coupon shall be delivered only
outside the United States and Canada.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; provided,
however, that payment of principal of (and premium, if any) and interest, if
any, on Bearer Securities shall be payable only at an office or agency located
outside the United States and Canada and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
23
Upon the issuance of any replacement Security under this
Section 306, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every replacement Security of any series with its coupons, if
any, issued pursuant to this Section 306 in lieu of any mutilated, destroyed,
lost or stolen Security or in exchange for a Security to which a mutilated,
destroyed, lost or stolen coupon appertains, shall constitute a contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series and their coupons, if any, duly issued
hereunder.
The provisions of this Section 306, as amended or supplemented
pursuant to Section 301 of this Indenture with respect to particular series of
Securities or generally, are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Principal,
Premium and Interest; Interest Rights Preserved; Optional Interest
Reset.
(a) Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities, interest,
if any, on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to Section
902; provided, however, that each installment of interest, if any, on any
Registered Security may at the Companys option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the Security Register or (ii) wire transfer to an account located in the United
States maintained by the Person entitled to such payment as specified in the
Security Register. Principal paid in relation to any Security at Maturity shall
be paid to the Holder of such Security only upon presentation and surrender of
such Security to any office or agency referred to in this Section 307(a).
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States and Canada maintained by the payee, upon presentation
and surrender of the coupons appertaining thereto.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
Defaulted Interest) shall be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided in 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted Interest shall
be paid to the Persons in whose name the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
24
(2) The Company may
make payment of any Defaulted Interest on the Registered Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b)
may be made applicable to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an Optional Reset Date). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an Optional Reset Date for such Security,
which notice shall specify the information to be included in the Reset Notice
(as defined). Not later than 40 days prior to each Optional Reset Date, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder
of any such Security a notice (the Reset Notice) indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable)
and (ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity of such Security (each such period a
Subsequent Interest Period), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Twelve
for repayment at the option of the Holder except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional Reset Date.
25
(c) Subject to the foregoing provisions of
this Section 307 and Section 305, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Optional Extension of Stated
Maturity. The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an Extension Period) up to but not beyond the date (the Final Maturity) set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the Original Stated Maturity). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the Extension Notice)
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustees transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in 106, notice of such higher interest rate
to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Twelve for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer,
the Company, the Trustee and any agent of any of the foregoing may treat the
Person in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee or any agent of any of the
foregoing shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of any of
the foregoing may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and the Company,
the Trustee or any agent of any of the foregoing shall be affected by notice to
the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
26
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
any of the foregoing from giving effect to any written certification, proxy or
other authorization furnished by any Depositary, as Holder of such global
Security, or impair, as between such Depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such global Security.
SECTION 310. Cancellation. All
Securities and coupons surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for credit against
any current or future sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Securities and coupons
so delivered to the Trustee shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section 310, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company unless by Company Order
the Company shall direct that cancelled Securities be returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect to any
Securities, interest, if any, on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months. For the purposes of
disclosure under the Interest Act (Canada), the yearly rate of interest
to which interest calculated under a Security for any period in any calendar
year (the calculation period) is equivalent, is the rate payable under a
Security in respect of the calculation period multiplied by a fraction the
numerator of which is the actual number of days in such calendar year and the
denominator of which is the actual number of days in the calculation period.
SECTION 312. Currency and Manner of
Payments in Respect of Securities.
(a) With respect to Registered Securities of
any series not permitting the election provided for in paragraph (b) below or
the Holders of which have not made the election provided for in paragraph (b)
below, and with respect to Bearer Securities of any series, except as provided
in paragraph (d) below, payment of the principal of (and premium, if any) and
interest, if any, on any Registered or Bearer Security of such series will be
made in the Currency in which such Registered Security or Bearer Security, as
the case may be, is denominated or stated to be payable. The provisions of this
Section 312 may be modified or superseded with respect to any Securities
pursuant to Section 301.
(b) It may be provided pursuant to Section
301 with respect to Registered Securities of any series that Holders shall have
the option, subject to paragraphs (d) and (e) below, to receive payments of
principal of (or premium, if any) or interest, if any, on such Registered
Securities in any of the Currencies which may be designated for such election by
delivering to the Trustee a written election with signature guarantees and in
the applicable form established pursuant to Section 301, not later than the
close of business on the Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or any transferee
of such Holder until changed by such Holder or such transferee by written notice
to the Trustee (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Thirteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in Section 312(a).
The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal
amount of Registered Securities for which Holders have made such written
election.
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(c) Unless otherwise specified pursuant to
Section 301, if the election referred to in paragraph (b) above has been
provided for pursuant to Section 301, then, unless otherwise specified pursuant
to Section 301, not later than the fourth Business Day after the Election Date
for each payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice specifying, in the Currency
in which Registered Securities of such series are payable, the respective
aggregate amounts of principal of (and premium, if any) and interest, if any, on
the Registered Securities to be paid on such payment date, specifying the
amounts in such Currency so payable in respect of the Registered Securities as
to which the Holders of Registered Securities of such series shall have elected
to be paid in another Currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officers Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the Valuation Date) immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Conversion Event occurs with
respect to a Foreign Currency in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to paragraph
(b) above, then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable Securities denominated
or payable in such Foreign Currency occurring after the last date on which such
Foreign Currency was used (the Conversion Date), the Dollar shall be the
Currency of payment for use on each such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar amount to be paid by the Company
to the Trustee and by the Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to
Section 301, if the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (b)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in the absence of
such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) above.
(f) The Dollar Equivalent of the Foreign
Currency shall be determined by the Exchange Rate Agent and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The Dollar Equivalent of the Currency
Unit shall be determined by the Exchange Rate Agent and subject to the
provisions of paragraph (h) below shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation Date with
respect to each payment.
(h) For purposes of this Section 312 the
following terms shall have the following meanings:
A Component Currency shall mean any
Currency which, on the Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the Euro.
A Specified Amount of a Component
Currency shall mean the number of units of such Component Currency or fractions
thereof which were represented in the relevant currency unit, including, but not
limited to, the Euro, on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided or
multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount in
such single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single Currency, and
such amount shall thereafter be a Specified Amount and such single Currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar Equivalent
value of the Specified Amount of such former Component Currency at the Market
Exchange Rate immediately before such division and such amounts shall thereafter
be Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the Euro, a Conversion Event (other than any
event referred to above in this definition of Specified Amount) occurs with
respect to any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
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Election Date shall mean the date for
any series of Registered Securities as specified pursuant to clause (13) of
Section 301 by which the written election referred to in paragraph (b) above may
be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the Euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will
promptly thereafter give notice in the manner provided for in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent pursuant to this Section 312 and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information independent
of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation
of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 301
for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued Currency into the
applicable payment Currency for the payment of principal (and premium, if any)
and interest, if any, pursuant to Section 312.
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(b) The Company shall have the right to
remove and replace from time to time the Exchange Rate Agent for any series of
Securities. No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section 313 shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evidenced by a written instrument delivered to the Company and the
Trustee.
(c) If the Exchange Rate Agent shall resign,
be removed or become incapable of acting, or if a vacancy shall occur in the
office of the Exchange Rate Agent for any cause with respect to the Securities
of one or more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with
respect to the Securities of that or those series (it being understood that any
such successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless otherwise
specified pursuant to Section 301, at any time there shall only be one Exchange
Rate Agent with respect to a series of Securities that are initially denominated
and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture. This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto, and the rights of Holders of such series of Securities and any related
coupons to receive, solely from the trust fund described in subclause (B) of
clause (1) of this Section 401, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities and any related
coupons when such payments are due and except as provided in the last paragraph
of this Section 401) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series
theretofore authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section 1006,
and (iv) Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 903) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and,
in the case of (i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due
and payable, or
(ii) will become
due and payable at their Stated Maturity within one year,
or
(iii) if redeemable
at the option of the Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i),
(ii) or (iii) above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an amount in the Currency
in which the Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if any)
and interest, if any, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
30
(2) the Company has
paid or caused to be paid all other sums payable hereunder by the Company, and
(3) the Company has
delivered to the Trustee an Officers Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the provisions of Section 905, the obligations of the Company to the
Trustee under Section 606, the obligations of the Trustee to any Authenticating
Agent under Section 611 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section 401, the provisions of
Sections 113, 114, 304, 305, 306, 902 and 903 (and any applicable provisions of
Article Ten) and the obligations of the Trustee under Section 402 shall survive
such satisfaction and discharge and remain in full force and effect.
SECTION 402. Application of Trust
Money. Subject to the provisions of the last paragraph of Section 903, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Event of Default, wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to a
supplemental indenture, Board Resolution or Officers Certificate establishing
the terms of such series pursuant to Section 301 of this Indenture:
(1) default in the
payment of the principal of (or premium, if any, on) any Security of that series
at its Maturity (otherwise than pursuant to a sinking fund); or
(2) default in the
payment of any interest on any Security of that series, or any related coupon,
when such interest or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(3) default in the
deposit of any sinking fund payment on any Security of that series, when the
same becomes due and payable, and continuance of such default for a period of 30
days; or
(4) default in the
performance, or breach, of any covenant or agreement of the Company in this
Indenture in respect of the Securities of that series (other than a default in
the performance or breach of a covenant or agreement which is specifically dealt
with elsewhere in this Section 501), and continuance of such default or breach
for a period of 90 days after there has been given (and 120 days with respect to
a default or breach under Section 703), by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Securities of such series then Outstanding, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a Notice of Default hereunder; or
31
(5) the Company
pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences a
proceeding or makes an application seeking a Bankruptcy Order;
(ii) consents to the
making of a Bankruptcy Order or the institution of any proceeding seeking the
making of a Bankruptcy Order against it;
(iii) consents to
the appointment of a Custodian of it or for all or any material part of its
property;
(iv) makes a general
assignment for the benefit of its creditors;
(v) files an
assignment in bankruptcy; or
(vi) consents to the
filing of an assignment in bankruptcy or the appointment of or taking possession
by a Custodian;
(6) a court of
competent jurisdiction in any involuntary case or proceeding makes a Bankruptcy
Order against the Company, and such Bankruptcy Order remains unstayed and in
effect for 90 consecutive days; or
(7) a Custodian
shall be appointed out of court with respect to the Company, or with respect to
all or any material part of the property of the Company and such appointment
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 90 days, or any encumbrancer shall take possession of all or any material
part of the property of the Company and such possession shall not have reverted
to the Company, as applicable, within 90 days; or
(8) any other Event
of Default provided with respect to Securities of that series.
Bankruptcy Law means the Federal Bankruptcy Code, Bankruptcy
and Insolvency Act (Canada), Companies Creditors Arrangement Act (Canada),
Winding-Up & Restructuring Act (Canada), or any other Canadian federal or
provincial law or any similar law of any other jurisdiction relating to
bankruptcy, insolvency, winding-up, liquidation, dissolution, reorganization or
relief of debtors.
Custodian means receiver, trustee, custodian, conservator,
provisional liquidator, liquidator, rehabilitator, administrator, controller,
business rescue practitioner or similar officer with like powers.
Bankruptcy Order means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation,
winding-up, dissolution or reorganization, or appointing a Custodian of a debtor
or of all or any material part of a debtors property, or providing for the
staying, arrangement, adjustment or compromise of indebtedness or other relief
of a debtor.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment. Except as otherwise provided pursuant to Section
301 with respect to a series of Securities, if an Event of Default described in
clause (1), (2), (3), (4) or (8) of Section 501 with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all of the Outstanding Securities of that series and
any accrued but unpaid interest thereon to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified portion thereof)
and any accrued but unpaid interest thereon shall become immediately due and payable. If an Event of Default
described in clause (5), (6) or (7) of Section 501 occurs and is continuing,
then in every such the principal amount of all of the Securities of that series
then outstanding shall automatically, and without any declaration or any other
action on the part of the Trustee or the Holders, become due and payable
immediately.
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At any time after a declaration of acceleration with respect to
Securities of any series has been made, and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article Five, the Event of Default giving rise to such
declaration of acceleration shall, without further act, be deemed to have been
waived, and such declaration and its consequences shall, without further act, be
deemed to have been rescinded and annulled, if:
(1) the Company has
paid or deposited with the Trustee a sum sufficient to pay in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue
interest, if any, on all Outstanding Securities of that series and any related
coupons,
(B) all unpaid
principal of (and premium, if any, on) all Outstanding Securities of that series
which has become due otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate or rates prescribed therefor in
such Securities,
(C) to the extent
lawful, interest on overdue interest, if any, at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid
or advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of
Default with respect to Securities of that series, other than the non-payment of
amounts of principal of or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness
and Suits for Enforcement by Trustee. The Company covenants that if:
(1) default is made
in the payment of any installment of interest on any Security and any related
coupon when such interest becomes due and payable and such default continues for
a period of 30 days,
(2) default is made
in the payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof (other than pursuant to the sinking fund), or
(3) default is made
in the payment of any sinking fund payment on any Security when such becomes due
and payable and such default continues for a period of 30 days,
then the Company will, upon demand of the Trustee, pay to the
Trustee for the benefit of the Holders of such Securities and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and interest on any overdue principal
(and premium, if any) and to the extent lawful on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of
Claim. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and
prove a claim for the whole amount of principal (and premium, if any), or such
portion of the principal amount of any series of Original Issue Discount
Securities or Indexed Securities as may be specified in the terms of such
series, and interest, if any, owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities. All rights of action and claims under this
Indenture, the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. Application of Money
Collected. Any money collected by the Trustee pursuant to this Article Five
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, if any, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
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First: To the payment of all amounts due the Trustee
under Section 606;
Second: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest, if any, on the
Securities and coupons in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits. No
Holder of any Security of any series or any related coupons shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has
previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities of that series;
(2) the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities of
such series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or
Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for
60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and
(5) no direction
inconsistent with such written request has been given to the Trustee during such
60-day period by the Holders of a majority or more in principal amount of the
Outstanding Securities of such series;
it being understood and intended that no one or more of the
Holders of Securities of such series shall have any right in any manner whatever
by his, her, its or their action to enforce any right hereunder, except on the
manner herein provided, and that every action, suit or proceeding at law or in
equity shall be instituted, had and maintained in the manner herein provided and
for the equal benefit of all Holders of the Outstanding Securities of such
series; provided, however, that nothing in this Indenture or in the
Securities of such series shall affect or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on the Securities of such series to the respective Holders of such
Securities at the respective due dates in such Securities stated, or affect or
impair the right, which is also absolute and unconditional, of such Holders to
institute suit to enforce the payment thereof.
SECTION 508. Unconditional Right of
Holders to Receive Principal, Premium and Interest. Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment, as provided
herein (including, if applicable, Article Thirteen) and in such Security of the
principal of (and premium, if any) and (subject to Section 307) interest, if
any, on, such Security or payment of such coupon on the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date or, in the case of repayment at the option of the Holder
as contemplated by Article Twelve, on the Repayment Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and
Remedies. If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies
Cumulative. Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not
Waiver. No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders. The
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Outstanding Securities of such series, provided in each case
(1) such direction
shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction, and
(3) the Trustee need
not take any action which might expose the Trustee to personal liability or be
unduly prejudicial to the Holders of Outstanding Securities not joining therein.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in principal
amount of the Outstanding Securities of a series may on behalf of the Holders of
all the Outstanding Securities of such series waive any such past Default, and
its consequences, except a Default
(1) in respect of
the payment of the principal of (or premium, if any) or interest, if any, on any
Security or any related coupon, or
(2) in respect of a
covenant or provision which under Article Eight cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such affected
series.
Upon any such waiver, any such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension
Laws. The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by its
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 515 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any Security
on or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of Holders as contemplated by Article Twelve, on or
after the applicable Repayment Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with respect to the
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in TIA Section 313(c), notice of such default hereunder known to
the Trustee, unless such Default shall have been cured or waived; provided,
however, that, except in the case of a Default in the payment of the
principal of (or premium, if any) or interest, if any, on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and provided
further that in the case of any Default of the character specified in
Section 501(4) or (8) with respect to Securities of such series, no such notice
to Holders shall be given until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of
Trustee. Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers
Certificate;
(4) the Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) except during a
default, the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Securities of any series or any related coupons pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
37
(7) the Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(8) the Trustee
shall not be liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Trustee Not Responsible for
Recitals or Issuance of Securities. The recitals contained herein and in the
Securities, except for the Trustees certificates of authentication, and in any
coupons shall be taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in any Statement of Eligibility on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or
any other agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to TIA Sections 310(b) and 311, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 606. Compensation and
Reimbursement. The Company agrees:
(1) to pay to the
Trustee from time to time such reasonable compensation as the Company and the
Trustee shall from time to time agree in writing, for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as
otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
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The obligations of the Company under this Section 606 to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5), (6) or (7), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The provisions of this Section 606 shall survive the
termination of this Indenture.
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests. The Trustee shall comply with the terms
of Section 310(b) of the TIA. There shall be at all times a Trustee hereunder
which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus (together with that of its parent, if
applicable) of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 607, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 607, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article Six.
SECTION 608. Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this Article Six shall
become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act of the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee
shall fail to comply with the provisions of TIA Section 310(b) after written
request therefor by either the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee
shall cease to be eligible under Section 607 and shall fail to resign after
written request therefor by either the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(3) the Trustee
shall become incapable of acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
39
then, in any such case, (i) either the Company, by a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to TIA Section 315(e), any Holder who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with respect to the
Securities of any series to the Holders of Securities of such series in the
manner provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by
Successor.
(a) In case of the appointment hereunder of
a successor Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of
a successor Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates. Whenever there is a successor Trustee with respect to one or
more (but less than all) series of securities issued pursuant to this Indenture,
the terms Indenture and Securities shall have the meanings specified in the
provisos to the respective definitions of those terms in Section 101 which
contemplate such situation.
40
(c) Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all rights, powers
and trusts referred to in paragraph (b) or (c) of this Section 609, as the case
may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article Six.
SECTION 610. Merger, Conversion,
Consolidation or Succession to Business. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article Six, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any of the Securities shall not have been
authenticated by such predecessor Trustee, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee. In all such cases such certificates shall
have the full force and effect which this Indenture provides for the certificate
of authentication of the Trustee; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 611. Appointment of
Authenticating Agent. At any time when any of the Securities remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series and the Trustee
shall give written notice of such appointment to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve, in the
manner provided for in Section 106. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 611,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 611, it shall resign
immediately in the manner and with the effect specified in this Section 611.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 611, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 611.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 611,
and the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 606.
If an appointment with respect to one or more series is made
pursuant to this Section 611, the Securities of such series may have endorsed
thereon, in addition to the Trustees certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ________________________________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ], as Trustee |
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By |
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as Authenticating Agent |
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By |
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Authorized
Officer |
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY
SECTION 701. Disclosure of Names and
Addresses of Holders. Every Holder of Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of any of them shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 702. Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit a brief report by mail to the
Holders of Securities, in accordance with and to the extent required by Section
313 of the TIA.
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(b) A copy of each such report at the time
of its mailing to Holders shall be filed with the Commission and each stock
exchange on which Debt Securities of any series are listed.
SECTION 703. Reports by the Company.
The Company shall:
(1) file with the
Trustee, within 15 days after the Company files the same with the Commission
(but in no event later than 50 days after the Company is required to make such
filing with the Commission), (i) copies of the annual reports containing audited
financial statements and copies of quarterly reports containing unaudited
financial statements and (ii) copies of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act;
(2) file with the
Trustee, within 15 days after the Company files the same with the Commission
(but in no event later than 50 days after the Company is required to make such
filing with the Commission), in accordance with rules and regulations prescribed
from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules
and regulations;
(3) in the event
that the Company is not required to remain subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act, or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the Commission, continue to
file with the Commission and provide the Trustee:
(a) within 140 days
after the end of each fiscal year, annual reports on Form 20-F, 40-F or Form
10-K, as applicable (or any successor form), containing audited financial
statements and the other information required to be contained therein (or
required in such successor form); and
(b) within 60 days
after the end of each of the first three fiscal quarters of each fiscal year,
reports on Form 6-K or Form 10-Q (or any successor form), containing unaudited
financial statements and the other information which, regardless of applicable
requirements shall, at a minimum, contain such information required to be
provided in quarterly reports under the laws of Canada or any province thereof
to security holders of a corporation with securities listed on the Toronto Stock
Exchange, whether or not the Company has any of its securities so listed.
Each of such reports will be prepared
in accordance with Canadian or United States disclosure requirements, as
required by the appropriate form or report, and Canadian GAAP and/or accounting
principles generally accepted in the United States, provided, however,
that the Company shall not be so obligated to file such reports with the
Commission if the Commission does not permit such filings; and
(4) transmit to all Holders, in the
manner and to the extent provided in and required by TIA Section 313(c), within
30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (1) and (2) of this Section 703 as may be required by rules and
regulations prescribed from time to time by the Commission.
(5) If at any time the Securities are
guaranteed by a direct or indirect parent of the Company, and such parent has
furnished the reports required by this Section 703 with respect to parent as
required by this Section 703 as if parent were the Company (including any
financial information required hereby), the Company shall be deemed to be in
compliance with this Section 703.
SECTION 704. The Company to Furnish
Trustee Names and Addresses of Holders. The Company will furnish or cause to
be furnished to the Trustee:
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(1) semi-annually,
not later than 15 days after the Regular Record Date for interest for each
series of Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities of
such series as of such Regular Record Date, or if there is no Regular Record
Date for interest for such series of Securities, semi-annually, upon such dates
as are set forth in the Board Resolution, Officers Certificate or indenture
supplemental hereto authorizing such series, and
(2) at such other
times as the Trustee may request in writing, within 30 days after the receipt by
the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
SUPPLEMENTAL
INDENTURES
SECTION 801. Supplemental Indentures
Without Consent of Holders. Without the consent of any Holders, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the
succession of another Person to the Company, or successive successions, and the
assumption by such successor of the covenants and obligations of the Company
contained in the Securities of one or more series and in this Indenture or any
supplemental indenture;
(2) to add to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities and any related coupons (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
being included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company; or
(3) to add any
additional Events of Default (and if such Events of Default are to be for the
benefit of less than all series of Securities, stating that such Events of
Default are being included solely for the benefit of such series); or
(4) to delete or
modify any Events of Default with respect to all or any series of the
Securities, the form and terms of which are being established pursuant to such
supplemental indenture as permitted in Section 301 (and if such Events of
Default are to be for the benefit of less than all series of Securities, stating
that such Events of Default are being included solely for the benefit of such
series, and to specify the rights and remedies of the Trustee and the Holders of
such Securities in connection therewith;
(5) to add to or
change any of the provisions of this Indenture to provide that Bearer Securities
may be registrable as to principal, to change or eliminate any restrictions on
the payment of principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities
in uncertificated form, in each case to the extent then permitted under the U.S.
Internal Revenue Code of 1986, as amended, and the U.S. Treasury Regulations
thereunder; provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; or
(6) to change or
eliminate any of the provisions of this Indenture; provided that any such change
or elimination shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
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(7) to secure the
Securities; or
(8) to establish the
form or terms of Securities of any series as permitted by Sections 201 and 301;
or
(9) to evidence and
provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609; or
(10) to close this
Indenture with respect to the authentication and delivery of additional series
of Securities; or
(11) to cure any
ambiguity or to correct or supplement any provision contained herein or in any
indenture supplemental hereto which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture or to conform
the terms hereof, as amended and supplemented, that are applicable to the
Securities of any series to the description of the terms of such Securities in
the offering memorandum, prospectus supplement or other offering document
applicable to such Securities at the time of initial sale thereof; or
(12) to make any
change in any series of Securities that does not adversely affect in any
material respect the rights of the Holders of such Securities;or
(13) to add to or
change or eliminate any provision of this Indenture as shall be necessary or
desirable in accordance with any amendments to the Trust Indenture Act; or
(14) to supplement
any of the provisions of this Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Sections 401, 1302 or 1303; provided that any such action
shall not adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any material
respect.
SECTION 802. Supplemental Indentures with
Consent of Holders. With the consent of the Holders of not less than a
majority in principal amount of all Outstanding Securities of all series
affected by such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security of such series,
(1) change the
Stated Maturity of the principal of (or premium, if any) or any installment of
interest on any Security of such series, or reduce the principal amount thereof
(or premium, if any) or the rate of interest, if any, thereon, or the Redemption
Price thereof or any amount payable upon repayment thereof at the option of the
Holder, reduce the amount of the principal of an Original Issue Discount
Security of such series that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or adversely affect any
right of repayment at the option of any Holder of any Security of such series,
or change any Place of Payment where, or the Currency in which, any Security of
such series or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or Repayment Date, as the case may
be), or adversely affect any right to convert or exchange any Security as may be
provided pursuant to Section 301 herein, or
(2) reduce the
percentage in principal amount of the Outstanding Securities of such series
required for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture which affect such series or certain defaults
applicable to such series hereunder and their consequences provided for in
Section 513 or Section 908 of this Indenture, or reduce the requirements of
Section 1404 for quorum or voting with respect to Securities of such series, or
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(3) modify any of
the provisions of this Section 802, Section 513 or Section 908, except to
increase any such percentage or to provide that certain other provisions of this
Indenture which affect such series cannot be modified or waived without the
consent of the Holder of each Outstanding Security of such series.
Any such supplemental indenture adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of such
series, shall not affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section 802 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 803. Execution of Supplemental
Indentures. In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Eight or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees own
rights, duties or immunities under this Indenture or otherwise.
SECTION 804. Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture under this
Article Eight, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 805. Conformity with Trust
Indenture Act. Every supplemental indenture executed pursuant to this
Article Eight shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 806. Reference in Securities to
Supplemental Indentures. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article Eight may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 807. Notice of Supplemental
Indentures. Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 802, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE NINE
COVENANTS
SECTION 901. Payment of Principal,
Premium, if any, and Interest. The Company covenants and agrees for the
benefit of the Holders of each series of Securities and any related coupons that
it will duly and punctually pay the principal of (and premium, if any) and
interest, if any, on the Securities of that series in accordance with the terms
of the Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
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SECTION 902. Maintenance of Office or
Agency. If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The City of New York, an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the second succeeding paragraph (and not otherwise), (B) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States and Canada, an office or
agency where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that, if the Securities of
that series are listed on any stock exchange located outside the United States
and Canada and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in any required city located
outside the United States and Canada so long as the Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States and Canada an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where Securities of that series
that are convertible and exchangeable may be surrendered for conversion or
exchange, as applicable and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of any such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, and the Company hereby appoints the same
as its agents to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or Canada or by check mailed to any address in the United States or
Canada or by transfer to an account maintained with a bank located in the United
States or Canada; provided, however, that, if the Securities of a series
are payable in Dollars, payment of principal of (and premium, if any) and
interest, if any, on any Bearer Security shall be made at the office of the
Companys Paying Agent in The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or interest, as the case
may be, at all offices or agencies outside the United States maintained for such
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities as contemplated by Section 301 with
respect to a series of Securities, the Company hereby designates as a Place of
Payment for each series of Securities the office or agency of the Trustee in,
and initially appoints the Trustee at its Corporate Trust Office as Paying Agent
and as its agent to receive all such presentations, surrenders, notices and
demands.
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Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 903. Money for Securities
Payments to Be Held in Trust. If the Company shall at any time act as its
own Paying Agent with respect to any series of Securities and any related
coupons, it will, on or before each due date of the principal of (or premium, if
any) or interest, if any, on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum in the
Currency in which the Securities of such series are payable (except as may
otherwise be specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal of (or premium, if any) or interest, if any, on
Securities of such series so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 903, that such Paying Agent will:
(1) hold all sums
held by it for the payment of the principal of (and premium, if any) and
interest, if any, on Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee
notice of any default by the Company (or any other obligor upon the Securities
of such series) in the making of any payment of principal of (or premium, if
any) or interest, if any, on the Securities of such series; and
(3) at any time
during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
coupon shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company, as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the written direction and at the expense of the Company cause to be
published once, in an Authorized Newspaper, or cause to be mailed to such Holder
or both, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company.
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SECTION 904. Statement as to
Compliance. The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year (which as of the date hereof ends on the
31st day of December), a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Companys compliance with all conditions and
covenants under this Indenture and as to any default in such performance. For
purposes of this Section 904, such compliance shall be determined without regard
to any period of grace or requirement of notice under this Indenture.
SECTION 905. Payment of Taxes and Other
Claims. The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company and (2) all material lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon any
property of the Company; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 906. Maintenance of
Properties. The Company will maintain, preserve and protect, all of its
material properties and title thereto and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that the failure to do so would not materially
impair the operations of the Company and its Subsidiaries taken as a whole;
provided, however, that nothing in this Section 906 shall prevent or
restrict the sale, abandonment or other disposition of any of such properties.
SECTION 907. Corporate Existence. The
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its existence in accordance with its organizational
documents; provided that this Section 907 does not prohibit any transaction
otherwise permitted by Section 909.
SECTION 908. Waiver of Certain
Covenants. The Company may, with respect to any series of Securities, omit
in any particular instance to comply with any term, provision or condition which
affects such series set forth in Sections 905 to 907, inclusive, or, as
specified pursuant to Section 301(19) for Securities of such series, in any
covenants added to Article Nine pursuant to Section 301(19) in connection with
Securities of such series, if before the time for such compliance the Holders of
at least a majority in principal amount of all Outstanding Securities of such
series, by Act of such Holders, waive such compliance in such instance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee to Holders of Securities of such series in respect of any
such term, provision or condition shall remain in full force and effect.
SECTION 909. Consolidation, Amalgamation,
Merger and Sale of Assets. The Company shall not amalgamate, consolidate or
combine with or merge with or into any other Person or sell, transfer or lease
all or substantially all of its properties and assets, substantially as an
entirety to another Person, unless:
(1) the resulting,
surviving or transferee Person (the Successor Company) shall be a Person
organized and existing under the laws of the Canada or any province or territory
thereunder, or under the laws of United States of America, any state thereof or
the District of Columbia, and the Successor Company (if not the Company) shall
expressly assume, by supplemental indenture, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all of the obligations
of the Company under the Securities and this Indenture;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(3) the Company or
the Successor Company shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that such amalgamation,
consolidation, merger or transfer, and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply with the provisions of this
Indenture, including Article 8 and this Section 909.
49
This Section 909 shall only apply to a merger, consolidation or
amalgamation in which the Company is not the surviving Person and to
conveyances, leases and transfers by the Company as transferor or lessor.
The Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture;
provided, however, that the Company shall not be released from the obligation to
pay the principal of, premium, if any, and interest on the Securities in the
case of a lease of all or substantially all of the Companys properties or
assets in a transaction that is subject to, and that complies with the
provisions of, this covenant.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of
Article. Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article Ten.
SECTION 1002. Election to Redeem; Notice
to Trustee. The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1003. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers Certificate
evidencing compliance with such restriction.
SECTION 1003. Selection by Trustee of
Securities to Be Redeemed. If less than all the Securities of any series are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
lot or in such manner as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions of the principal of
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to
less than the minimum authorized denomination for Securities of such series
established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1004. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption
Date,
(2) the Redemption
Price and the amount of accrued interest to the Redemption Date payable as
provided in Section 1006, if any,
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(3) if less than all
the Outstanding Securities of any series are to be redeemed, the identification
(and, in the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any
Security is to be redeemed in part only, the notice which relates to such
Security shall state that on and after the Redemption Date, upon surrender of
such Security, the Holder will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the
Redemption Date, the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1006 will become due and payable
upon each such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(6) the Place or
Places of Payment where such Securities, together in the case of Bearer
Securities with all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price and
accrued interest, if any,
(7) that the
redemption is for a sinking fund, if such is the case,
(8) that, unless
otherwise specified in such notice, Bearer Securities of any series, if any,
surrendered for redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished, and
(9) if Bearer
Securities of any series are to be redeemed and any Registered Securities of
such series are not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption on such Redemption
Date pursuant to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Companys
request, by the Trustee in the name and at the expense of the Company.
SECTION 1005. Deposit of Redemption
Price. Prior to any Redemption Date, the Company shall deposit or cause to
be deposited with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 903) an amount of money in the Currency in which the Securities of such
series are payable (except, if applicable, as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), Section 312(d) and 312(e)) sufficient to pay the
Redemption Price of, and accrued interest, if any, on, all the Securities which
are to be redeemed on that date.
SECTION 1006. Securities Payable on
Redemption Date. Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except, if applicable, as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), Section 312(d) and 312(e))
(together with accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest, if any) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and Canada (except as otherwise provided in Section 902) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; provided further that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant record dates according to their terms and the provisions of Section
307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an
office or agency located outside the United States and Canada (except as
otherwise provided in Section 902) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1007. Securities Redeemed in
Part. Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article Ten or of Article Eleven) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holders
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
SECTION 1101. Applicability of
Article. Retirements of Securities of any series pursuant to any sinking
fund shall be made in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article Eleven.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a mandatory
sinking fund payment, and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
optional sinking fund payment. If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 1102. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1102. Satisfaction of Sinking
Fund Payments with Securities. Subject to Section 1003, in lieu of making
all or any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (1) deliver to the
Trustee Outstanding Securities of such series (other than any previously called
for redemption) theretofore purchased or otherwise acquired by the Company
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto, and/or (2) receive credit for the principal amount
of Securities of such series which have been previously redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
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SECTION 1103. Redemption of Securities
for Sinking Fund. Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except, if applicable, as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
and the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 1102 (which Securities
will, if not previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional sinking fund
payment with respect to such series. Such certificate shall be irrevocable and
upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1102 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1003 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1004. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1006 and 1007.
Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 903) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1103.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE TWELVE
REPAYMENT AT OPTION OF HOLDERS
SECTION 1201. Applicability of
Article. Repayment of Securities of any series before their Stated Maturity
at the option of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article Twelve.
SECTION 1202. Repayment of
Securities. Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that, with respect to Securities, on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 903) an
amount of money in the Currency in which the Securities of such series are
payable (except, if applicable, as otherwise specified pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
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SECTION 1203. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an Option to Elect Repayment form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the Option to Elect Repayment form on the reverse of
such Security duly completed by the Holder (or by the Holders attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1204. When Securities Presented
for Repayment Become Due and Payable. If Securities of any series providing
for repayment at the option of the Holders thereof shall have been surrendered
as provided in this Article Twelve and as provided by or pursuant to the terms
of such Securities, such Securities or the portions thereof, as the case may be,
to be repaid shall become due and payable and shall be paid by the Company on
the Repayment Date therein specified, and on and after such Repayment Date
(unless the Company shall default in the payment of such Securities on such
Repayment Date together with, if applicable, accrued interest, if any, thereon
to the Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated Maturity is
on or prior to the Repayment Date shall be payable only at an office or agency
located outside the United States and Canada (except as otherwise provided in
Section 902) and, unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; provided further that, in the
case of Registered Securities, installments of interest, if any, whose Stated
Maturity is on or prior to the Repayment Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1202 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and Canada (except as otherwise provided in Section
902) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
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SECTION 1205. Securities Repaid in
Part. Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series each, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT
DEFEASANCE
SECTION 1301. Option to Effect Defeasance
or Covenant Defeasance. Except as otherwise specified as contemplated by
Section 301 for Securities of any series, the provisions of this Article
Thirteen shall apply to each series of Securities, and the Company may, at its
option, effect defeasance of the Securities of a series under Section 1302, or
covenant defeasance of a series under Section 1303 in accordance with the terms
of such Securities and in accordance with this Article Thirteen; provided,
however, that, unless otherwise specified pursuant to Section 301 with
respect to the Securities of any series, the Company may effect defeasance or
covenant defeasance only with respect to all of the Securities of such series.
SECTION 1302. Defeasance and
Discharge. Upon the exercise by the Company of the above option applicable
to this Section 1302 with respect to any Securities of a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 1304 are satisfied (hereinafter, defeasance). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, respectively, which shall thereafter be deemed to be
Outstanding only for the purposes of Section 1305 and the other provisions of
this Indenture referred to in (A), (B), (C) and (D) below, and to have satisfied
its other obligations under such Securities and any related coupons,
respectively, and this Indenture insofar as such Securities and any related
coupons are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any related coupons to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any related coupons when
such payments are due, (B) the Companys and the Trustees obligations with
respect to such Securities under Sections 113, 114, 304, 305, 306, 902 and 903
(and any applicable provisions of Article Ten), (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of the option
under Section 1303 with respect to such Securities and any related coupons.
SECTION 1303. Covenant Defeasance.
Upon the exercise by the Company of the above option applicable to this Section
1303 with respect to any Securities of a series, the Company shall be released
from its obligations under Sections 905 through 907, and, if specified pursuant
to Section 301, its obligations under any other covenant, in each case with
respect to such Outstanding Securities and any related coupons, respectively, on
and after the date the conditions set forth in Section 1304 are satisfied
(hereinafter, covenant defeasance), and such Securities and any related
coupons shall thereafter be deemed not to be Outstanding for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed Outstanding for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(4) or (8) or otherwise, but, except as specified above, the
remainder of this Indenture and such Securities and any related coupons shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or
Covenant Defeasance. The following shall be the conditions to application of
either Section 1302 or Section 1303 to any Outstanding Securities of or within a
series and any related coupons:
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(1) The Company has
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities and any related coupons, (A) an amount (in such Currency in which
such Securities and any related coupons are then specified as payable at Stated
Maturity), or (B) Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such Securities are then
specified as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal
of or premium, if any, or interest, if any, or any other sums due under such
Securities and any related coupons, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any) and interest, if any, and any other sums
due under such Outstanding Securities and any related coupons on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and premium, if
any) or installment of interest, if any, or any other sums and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any related coupons on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of such
Securities and any related coupons; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities and any
related coupons. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1002, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance with the
terms of the Securities of such series and Article Ten, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given effect
in applying the foregoing.
(2) In the case of
an election under Section 1302, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States stating that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of execution of this Indenture, there has been a
change in the applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
such Outstanding Securities and any related coupons will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such defeasance
and will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance had
not occurred.
(3) In the case of
an election under Section 1303, the Company shall have delivered to the Trustee
an Opinion of Counsel in the United States to the effect that the Holders of
such Outstanding Securities and any related coupons will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such covenant
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(4) The Company has
delivered to the Trustee an Opinion of Counsel in Canada or a ruling from Canada
Customs and Revenue Agency to the effect that the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or loss for
Canadian federal or provincial income tax or other tax purposes as a result of
such defeasance or covenant defeasance and will be subject to Canadian federal
and provincial income tax and other tax on the same amounts, in the same manner
and at the same times as would have been the case had such defeasance or
covenant defeasance not occurred (and for the purposes of such opinion, such
Canadian counsel shall assume that Holders of such Outstanding Securities
include Holders who are not resident in Canada).
(5) The Company is
not an insolvent person within the meaning of the Bankruptcy and Insolvency
Act (Canada) on the date of such deposit or at any time during the period
ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
56
(6) No Event of
Default or event that, with the passing of time or the giving of notice, or
both, shall constitute an Event of Default under the Indenture or such
Securities or any related coupons shall have occurred and be continuing on the
date of such deposit (other than a Default resulting from the borrowing of funds
and the grant of any related liens to be applied to such deposit) or, insofar as
paragraphs (5), (6) and (7) of Section 501 are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(7) Notwithstanding
any other provisions of this Section 1304, such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations in connection therewith pursuant to Section
301.
(8) The Company
shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to
either the defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
SECTION 1305. Deposited Money and
Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions. Subject to the provisions of the last paragraph of Section
903, all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
1305, the Trustee) pursuant to Section 1304 in respect of such Outstanding
Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related
coupons and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine (other than, with respect only to
defeasance pursuant to Section 1302, the Company or any of its Affiliates), to
the Holders of such Securities and any related coupons of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
if any, but such money need not be segregated from other funds except to the
extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1304(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1304(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or
by the terms of any Security in respect of which the deposit pursuant to Section
1304(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
related coupons.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon request of the Company any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1304
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article Thirteen.
SECTION 1306. Reinstatement. If the
Trustee or any Paying Agent is unable to apply any money in accordance with
Section 1305 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then the
obligations of the Company under this Indenture and such Securities and any
related coupons shall be revived and reinstated as though no deposit had
occurred pursuant to Section 1302 or Section 1303, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
57
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called. If Securities of a series are
issuable, in whole or in part, as Bearer Securities, a meeting of Holders of
Securities of such series may be called at any time and from time to time
pursuant to this Article Fourteen to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. Call, Notice and Place of
Meetings.
(a) The Trustee may at any time call a
meeting of Holders of Securities of any series for any purpose specified in
Section 1401, to be held at such time and at such place in the City of New York
or in London or in Vancouver as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided for in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company,
pursuant to a Board Resolution or the Holders of at least 10% in principal
amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the City of New York, London or in
Toronto, Ontario, Canada for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section
1402.
SECTION 1403. Persons Entitled to Vote at
Meetings. To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder of Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Person entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1404. Quorum; Action. The
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of a series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that, if any action is to be taken
at such meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
58
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in aggregate
principal amount of the Outstanding Securities at the time shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting.
Except as limited by the proviso to Section 802, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series; provided, however, that, except as limited by the proviso to
Section 802, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
1404 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1404,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be
no minimum quorum requirement for such meeting; and
(ii) the principal
amount of the Outstanding Securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1405. Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
its shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in
writing appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as provided in
Section 1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
59
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined as
specified in the definition of Outstanding in Section 101); provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and
Recording Action of Meetings. The vote upon any resolution submitted to any
meeting of Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of Securities of such
series or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities of such series held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the Secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
60
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
B2GOLD CORP. |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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, as Trustee |
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By: |
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Title: |
EXHIBIT A
FORM OF SECURITY
*[Unless this Security is presented by an
authorized representative of The Depository Trust Company, a New York
corporation (DTC), to the Company (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
*[This Security is a global Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of DTC or a
nominee of DTC. This Security is exchangeable for Securities registered in the
name of a Person other than DTC or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by DTC to a nominee of DTC or by a nominee
of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a
successor Depositary or nominee of such successor Depositary) may be registered
except in limited circumstances.]
B2GOLD CORP.
% [Debenture] [Bond] [Note] [due] [Due]
CUSIP:
B2Gold Corp., a corporation
incorporated under the laws of the Province of British Columbia (herein called
the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [Cede
& Co.] *, or registered assigns, the principal sum of $_______ (_________DOLLARS) on [date and year], as revised by the
Schedule of Increases or Decreases in Global Security attached hereto, at the
office or agency of the Company referred to below, and to pay interest thereon
on [date and year], and semi-annually thereafter on [date] and [date] in each
year, from and including [date and year],** or from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of ______% per annum, until the
principal hereof is paid or duly provided for, and (to the extent lawful) to pay
on demand interest on any overdue principal, [premium, if any,] or interest at
the rate borne by this Security from and including the date on which such
overdue principal, [premium, if any,] or interest becomes payable to but
excluding the date payment of such principal, [premium, if any,] or interest has
been made or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the [date] or [date] (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
such Defaulted Interest, and (to the extent lawful) interest on such Defaulted
Interest at the rate borne by the Securities of this series, may be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such
____________________
* |
Include if Securities are to issued in global form. At the time of this writing,
DTC will not accept global securities with an aggregate principal amount in
excess of $500,000,000. If the aggregate principal amount of the offering
exceeds this amount, use more than one global security. |
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** |
Insert date from which interest is to accrue or,
if the Securities are to be sold flat, the closing date of the offering.
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A-1
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: |
B2GOLD CORP. |
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as Trustee
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Authorized
Officer |
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
A-2
[Form of Reverse]
This Security is one of a duly authorized issue of securities
of the Company designated as its ________% [Debentures] [Notes] [due]
[Due] __________ (herein called the Securities), limited
(except as otherwise provided in the Indenture referred to below [and except as
provided in the second succeeding paragraph]) in aggregate principal amount to
$[ ,000,000], which may be issued under an indenture (herein called the
Indenture) dated as of ______, _________ between B2Gold Corp.
and _______, as trustee (herein called the
Trustee, which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. [This Security is a global Security
representing $[ ,,000] aggregate principal amount [at maturity]** of
the Securities of this series.]***
Payment of the principal of (and premium, if any,) and interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company (i) by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register or (ii) by wire transfer to
an account maintained in the United States by the Person entitled to such
payment as specified in the Security Register. [Notwithstanding the foregoing,
payments of principal, premium, if any, and interest on a global Security
registered in the name of a Depositary or its nominee will be made by wire
transfer of immediately available funds.] Principal paid in relation to any
Security of this series at Maturity shall be paid to the Holder of such Security
only upon presentation and surrender of such Security to such office or agency
referred to above.
[As provided for in the Indenture, the Company may from time to
time without notice to, or the consent of, the Holders of the Securities, create
and issue additional Securities of this series under the Indenture, equal in
rank to the Outstanding Securities of this series in all respects (or in all
respects except for the payment of interest accruing prior to the issue date of
the new Securities of this series or except for the first payment of interest
following the issue date of the new Securities of this series) so that the new
Securities of this series shall be consolidated and form a single series with
the Outstanding Securities of this series and have the same terms as to status,
redemption or otherwise as the Outstanding Securities of this
series.]****
[The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days notice, at any time after [date and
year], as a whole or in part, at the election of the Company [, at a Redemption
Price equal to the percentage of the principal amount set forth below if
redeemed during the 12-month period beginning [date], of the years indicated:
Year
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and thereafter] at 100% of the principal amount, together in
the case of any such redemption with accrued interest, if any, to the Redemption
Date, all as provided in the Indenture.]*
____________________
** |
Include if a discount security. |
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*** |
Include in a global Security.
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**** |
Include if this series of
Securities may be reopened pursuant to Section 301 of the Indenture.
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* |
Include
if the Securities are subject to redemption or replace with any other redemption
provisions applicable to the Securities.
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A-3
[The Securities of this series are also subject to redemption
on [date] in each year commencing in [year] through the operation of a sinking
fund, at a Redemption Price equal to 100% of the principal amount, together with
accrued interest to the Redemption Date, all as provided in the Indenture. The
sinking fund provides for the [mandatory] redemption on [date] in each year
beginning with the year [year] of $______ aggregate principal amount of Securities of
this series. [In addition, the Company may, at its option, elect to redeem up to
an additional $______ aggregate principal amount of Securities of this series on any
such date.] Securities of this series acquired or redeemed by the Company (other
than through operation of the sinking fund) may be credited against subsequent
[mandatory] sinking fund payments.]**
[The Securities of this series are subject to repayment at the
option of the Holders thereof on [Repayment Date(s)] at a Repayment Price equal
to ___% of the principal amount, together with accrued interest to the Repayment
Date, all as provided in the Indenture. To be repaid at the option of the
Holder, this Security, with the Option to Elect Repayment form duly completed
by the Holder hereof (or the Holders attorney duly authorized in writing), must
be received by the Company at its office or agency maintained for that purpose
in ________ not earlier than 45 days nor later than 30 days prior to the Repayment Date.
Exercise of such option by the Holder of this Security shall be irrevocable
unless waived by the Company.]***
In the case of any redemption [repayment] of Securities of this
series, interest installments whose Stated Maturity is on or prior to the
Redemption Date [Repayment Date] will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant record dates according to their terms and the
provisions of Section 307 of the Indenture. Securities of this series (or
portions thereof) for whose redemption [repayment] payment is made or duly
provided for in accordance with the Indenture shall cease to bear interest from
and after the Redemption Date [Repayment Date].
In the event of redemption [repayment] of this Security in part
only, a new Security or Securities of this series for the unredeemed [unpaid]
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of [and accrued but unpaid interest on] all the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default applicable
to the Securities of this series, upon compliance by the Company, with certain
conditions set forth therein, which provisions apply to this Security.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series affected by such amendment or modification. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of this series at the time Outstanding, on
behalf of the Holders of all the Securities of this series, to waive compliance
by the Company with certain provisions of the Indenture and also contains
provisions permitting the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series with respect to
which a Default shall have occurred and shall be continuing, on behalf of the
Holders of all Outstanding Securities of such affected series, to waive certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
____________________
** |
Include
if the Securities are subject to a sinking fund. |
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Include if the Securities are subject to
repayment at the option of the Holders.
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A-4
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any, on) and interest on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
_______ duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities of this series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months. For the purposes of disclosure under the
Interest Act (Canada), the yearly rate of interest to which interest
calculated under a Security of this series for any period in any calendar year
(the calculation period) is equivalent is the rate payable under a Security of
this series in respect of the calculation period multiplied by a fraction the
numerator of which is the actual number of days in such calendar year and the
denominator of which is the actual number of days in the calculation period.
[If at any time, (i) the Depositary for the Securities of this
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of this series or if at any time the Depositary
for the Securities of this series shall no longer be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, [or] (ii) the Company determines that the Securities of this series shall no
longer be represented by a global Security or Securities [or (iii) any Event of
Default shall have occurred and be continuing with respect to the Securities of
this series]*, then in such event the Company will execute and the
Trustee will authenticate and deliver Securities of this series in definitive
registered form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of this Security in exchange for this
Security. Such Securities of this series in definitive registered form shall be
registered in such names and issued in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
of this series to the Persons in whose names such Securities of this series are
so registered.]**
____________________
* |
Include, if
applicable. |
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** |
Include for global security.
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A-5
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
All references herein to dollars or $ means a dollar or
other equivalent unit in such coin or currency of the United States of America
as at the time should be legal tender for the payment of public and private
debts, and all terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-6
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security [(or the portion thereof specified below)],
pursuant to its terms, on the Repayment Date first occurring after the date of
receipt of the within Security as specified below, at a Repayment Price equal %
of the principal amount thereof, together with accrued interest to the Repayment
Date, to the undersigned at:
(Please Print or Type Name and Address of the Undersigned.)
For this Option to Elect Repayment to be effective, this
Security with the Option to Elect Repayment duly completed must be received not
earlier than 45 days prior to the Repayment Date and not later than 30 days
prior to the Repayment Date by the Company at its office or agency in New York,
New York.
If less than the entire principal amount of the within Security
is to be repaid, specify the portion thereof (which shall be $1,000 or an
integral multiple thereof) which is to be repaid: $_______.
If less than the entire principal amount of the within Security
is to be repaid, specify the denomination(s) of the Security(ies) to be issued
for the unpaid amount ($1,000 or any integral multiple of $1,000): $_________.
Dated:
Note: The signature to this Option to Elect Repayment
must correspond with the name as written upon the face of the within
Security in every particular without alterations or enlargement or any
change whatsoever.] |
A-7
ASSIGNMENT FORM*
To assign this Security, fill in the form below:
I or we
assign and transfer this Security to
_____________________________________________________
(INSERT
ASSIGNEES SOC. SEC., SOC. INS. OR TAX ID NO.)
(Print or type assignees name, address and zip or postal code)
and irrevocably appoint
_________________
________________________agent
to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: ___________________ |
Your
Signature: |
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(Sign exactly as name appears on the other side
of this Security) |
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Signature
Guarantee: |
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(Signature must be guaranteed by a commercial
bank or trust company, by a member or members organization of The New
York Stock Exchange or by another eligible guarantor institution as
defined in Rule 17Ad-15 under the Securities Exchange Act of 1934)
|
________________________________
* Omit if a
global security
A-8
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO
RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE
EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of
Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are not owned by any person(s) that is a citizen or resident of the United
States; a corporation or partnership (including any entity treated as a
corporation or partnership 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 unless, in the case of a partnership, U.S. Treasury
Regulations provide otherwise; any estate whose income is subject to U.S.
federal income tax regardless of its source or; a trust if (A) a U.S. court can
exercise primary supervision over the trusts administration and one or more
United States persons are authorized to control all substantial decisions of the
trust or (B) a trust in existence on August 20, 1996, and treated as a United
States person before this date that timely elected to continue to be treated as
a United States person (United States persons(s)), (ii) are owned by United
States person(s) that are (a) foreign branches of U.S. financial institutions
(financial institutions, as defined in U.S. Treasury Regulation Section 1.165
-12(c)(1)(iv) are herein referred to as financial institutions) purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of U.S. financial institutions and who hold
the Securities through such U.S. financial institutions on the date hereof (and
in either case (a) or (b), each such U.S. financial institution hereby agrees,
on its own behalf or through its agent, that you may advise B2Gold Corp. or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by U.S. or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulation Section 1.163 -5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a U.S. or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)), this
is to further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, United States means the United States of
America (including the states and the District of Columbia); and its
possessions include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
B-1
[To be dated no earlier than the 15th day prior to (i) the
Exchange Date or (ii) the relevant Interest Payment Date occurring prior
to the Exchange Date, as applicable] |
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[Name of Person Making
Certification] |
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(Authorized
Signatory) |
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Name: |
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Title: |
B-2
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM
IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of
Securities to be delivered]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our Member Organizations)
substantially in the form attached hereto, as of the date hereof, [U.S.$]
principal amount of the above-captioned Securities (i) is not owned by any
person(s) that is a citizen or resident of the United States; a corporation or
partnership (including any entity treated as a corporation or partnership 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 unless, in the
case of a partnership, U.S. Treasury Regulations provide otherwise; any estate
whose income is subject to U.S. federal income tax regardless of its source or;
a trust if (A) a U.S. court can exercise primary supervision over the trusts
administration and one or more United States persons are authorized to control
all substantial decisions of the trust or (B) a trust in existence on August 20,
1996, and treated as a United States person before this date that timely elected
to continue to be treated as a United States person (United States person(s)),
(ii) is owned by United States person(s) that are (a) foreign branches of U.S.
financial institutions (financial institutions, as defined in U.S. Treasury
Regulation Section 1.165 -12(c)(1)(iv) are herein referred to as financial
institutions) purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of U.S.
financial institutions and who hold the Securities through such U.S. financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise B2Gold Corp. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by U.S. or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulation Section 1.163
-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, United States means the United States of
America (including the states and the District of Columbia); and its
possessions include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
B-3
Dated: |
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[To be dated no earlier than the Exchange Date or the
relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable] |
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[ ]], as Operator of the Euroclear
System] |
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[CLEARSTREAM] |
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By ____________________________________________
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B-4
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