As filed with the Securities and Exchange Commission
on May 13, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-10
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW GOLD INC.
(Exact name of Registrant as specified in its charter)
British Columbia, Canada
(Province or other jurisdiction of
incorporation or organization) |
1000
(Primary Standard Industrial
Classification Code Number,
if applicable) |
Not applicable
(I.R.S. Employer
Identification No., if applicable) |
181 Bay Street, Suite 3320
Toronto, Ontario
M5J 2T3
(416) 324-6000
(Address and telephone number of Registrant’s
principal executive offices)
CT Corporation System
28 Liberty Street
New York, NY 10005
(212) 894-8940
(Name, address (including zip code) and telephone
number
(including area code) of agent for service in the
United States)
|
Sean Keating
New Gold Inc.
Brookfield Place
181 Bay Street, Suite 3320
Toronto, ON, Canada
M5J 2T3
(416) 324-6000 |
|
Christopher J. Cummings
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
77 King Street West
Suite 3100
Toronto, ON, Canada
M5K 1J3
(416) 504-0522 |
|
Richard Fridman
Steven J. Cutler
Davies Ward Phillips & Vineberg LLP
155 Wellington Street West
Toronto, ON, Canada
M5V 3J7
(416) 367-7567 |
Approximate date of commencement of proposed
sale of the securities to the public:
From time to time after the effective date of this
Registration Statement.
Province of Ontario, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective
(check appropriate box below):
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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). |
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at some future date (check the appropriate box below): |
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pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than 7 calendar days after filing). |
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pursuant to Rule 467(b) on ( ) at ( ) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ). |
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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. |
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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 jurisdiction’s shelf
prospectus offering procedures, check the following box. x
PART I
INFORMATION REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
Short
Form Base Shelf Prospectus
New
Gold Inc.
Common Shares
Debt Securities
Subscription Receipts
Warrants
Units
New Gold Inc. (“New
Gold” or the “Company”) may from time to time offer and issue the following securities: (i) common
shares of the Company (“Common Shares”); (ii) debt securities (“Debt Securities”), including
Debt Securities convertible or exchangeable into other securities of New Gold; (iii) subscription receipts (“Subscription
Receipts”); (iv) warrants to purchase other securities of New Gold (“Warrants”); and (v) units
composed of one or more of the other securities described in this prospectus (“Units”, and collectively with the Common
Shares, Debt Securities, Subscription Receipts and Warrants, the “Securities”), during the 25 month period that this
short form base shelf prospectus (the “Prospectus”), including any amendments hereto, remains valid. Securities may
be offered separately or together, 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”).
The specific variable
terms of any offering of Securities will be set out in the applicable Prospectus Supplement including, where applicable: (i) in
the case of Common Shares, the number of shares offered and the offering price (or the manner of determination thereof if offered on
a non-fixed price basis); (ii) in the case of the Debt Securities, the specific designation of the Debt Securities, the seniority
of such Debt Securities, the aggregate principal amount of the Debt Securities being offered, the currency or currency unit in which
the Debt Securities may be purchased, authorized denominations, any limit on the aggregate principal amount of the Debt Securities of
the series being offered, the issue and delivery date, the maturity date, the offering price (at par, at a discount or at a premium),
the interest rate or method of determining the interest rate, the interest payment date(s), any conversion or exchange rights that are
attached to the Debt Securities, any redemption provisions, any repayment provisions and any other specific terms; (iii) in the
case of Subscription Receipts, the number of Subscription Receipts being offered, the offering price (or the manner of determination
thereof if offered on a non-fixed price basis), the procedures for the exchange of Subscription Receipts for underlying Securities, the
currency or currency unit in which the Subscription Receipts are issued and any other specific terms; (iv) in the case of Warrants,
the designation, number and terms of the underlying Securities purchasable upon exercise of the Warrants, any procedures that will result
in the adjustment of those numbers, the exercise price, dates and periods of exercise, the currency in which the Warrants are issued
and any other specific terms; and (v) in the case of Units, the designation and terms of the Units and of the Securities comprising
the Units, the currency or currency unit in which the Units are issued and any other specific terms. A Prospectus Supplement may include
other specific variable terms pertaining to the Securities that are not within the alternatives and parameters described in this Prospectus.
New Gold has determined
that, as of the date hereof, it qualifies as a “well-known seasoned issuer” under the WKSI Blanket Orders (as defined under
the heading “Well-Known Seasoned Issuer” below). All shelf information permitted under applicable laws to be omitted from
this Prospectus that has been omitted 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. Prospective investors should read this Prospectus and any applicable Prospectus Supplement carefully
before investing in any Securities issued pursuant to the Prospectus. See “Risk Factors”.
New Gold may sell
the Securities to or through underwriters or dealers purchasing as principals and may also sell the Securities to one or more purchasers
directly subject to obtaining any required exemptive relief or through agents. The Prospectus Supplement relating to a particular offering
of Securities will identify each underwriter, dealer or agent, if any, engaged in connection with the offering and sale of Securities
and will set forth the terms of the offering of such Securities, the method of distribution of such Securities including the proceeds
to New Gold, and any fees, discounts or any other compensation payable to underwriters, dealers or agents and any other material terms
of the plan of distribution. Securities may be sold from time to time in one or more transactions at a fixed price or fixed prices, or
at non-fixed prices. If offered on a non-fixed price basis, Securities may be offered at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at prices to be negotiated with purchasers at the time of sale, which prices may
vary between purchasers and during the period of distribution. If Securities are offered on a non-fixed price basis, the underwriters’,
dealers’ or agents’ compensation will be increased or decreased by the amount by which the aggregate price paid for Securities
by the purchasers exceeds or is less than the gross proceeds paid by the underwriters, dealers or agents to New Gold. See “Plan
of Distribution”.
The outstanding
Common Shares are listed on the Toronto Stock Exchange (the “TSX”) and on the NYSE American LLC (the “NYSE
American”) under the symbol “NGD”. There is currently no market through which the Securities (other than Common
Shares) may be sold and purchasers may not be able to resell any such Securities purchased under this Prospectus. This may affect the
pricing of such Securities in the secondary market, the transparency and availability of trading prices, the liquidity of such Securities
and the extent of issuer regulation. See “Risk Factors” below and the “Risk Factors” section of the applicable
Prospectus Supplement.
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, a statistical measure
of economic or financial performance, including 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 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 to recognized market benchmark interest rates.
Subject to applicable
laws, in connection with any offering of Securities, the underwriters, dealers or agents may over-allocate or effect transactions which
stabilize or maintain the market price of the Securities at levels other than those which may prevail on the open market. Such transactions,
if commenced, may be interrupted or discontinued at any time. A purchaser who acquires Securities forming part of the underwriters’,
dealers’ or agents’ over-allocation position acquires those Securities under this Prospectus, regardless of whether the over-allocation
position is ultimately filled through the exercise of the over-allotment option or secondary market purchases. See “Plan of Distribution”.
Any investment in
Securities involves significant risks that should be carefully considered by prospective investors before purchasing Securities. The
risks outlined in this Prospectus and in the documents incorporated by reference herein, including the applicable Prospectus Supplement,
should be carefully reviewed and considered by prospective investors in connection with any investment in Securities. See “Risk
Factors” below and the “Risk Factors” section of the applicable Prospectus Supplement.
New Gold is permitted,
under the multi-jurisdictional disclosure system adopted by the United States and Canada, to prepare this Prospectus and any Prospectus
Supplement in accordance with Canadian disclosure requirements. You should be aware that such requirements are different from those of
the United States.
Financial statements
incorporated herein by reference have been prepared in accordance with International Financial Reporting Standards (“IFRS”)
as issued by the International Accounting Standards Board (“IASB”) and, as a result, such financial statements may not be
comparable to the financial statements of United States companies.
Prospective investors
should be aware that the acquisition, holding and disposition of Securities may subject them to tax consequences in both the United States
and Canada. This Prospectus may not describe these tax consequences fully. You should read the tax discussion contained in any applicable
Prospectus Supplement and consult your own tax advisor with respect to your own particular circumstances.
Your ability
to enforce civil liabilities under United States federal securities laws may be affected adversely because New Gold exists under the
laws of the Province of British Columbia, Canada, some of its directors and officers and most of the experts named in this Prospectus
are resident outside the United States, and most of its assets and a significant portion of the assets of those officers, directors and
experts are located outside of the United States.
NONE OF THE CANADIAN
SECURITIES REGULATORY AUTHORITIES, THE SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) NOR ANY UNITED STATES STATE SECURITIES
COMMISSION OR OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THE SECURITIES OFFERED HEREBY, OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE.
No underwriter
or dealer has been involved in the preparation of, or has performed any review of, this Prospectus.
Table
of Contents
Notice
to Readers
This Prospectus
provides a general description of the Securities that New Gold may offer. Each time New Gold sells Securities under this Prospectus,
New Gold will provide you with a Prospectus Supplement that will contain specific information about the terms of that offering. The Prospectus
Supplement may also add, update or change information contained in this Prospectus. Before investing in any Securities, you should read
both this Prospectus and any applicable Prospectus Supplement, together with the additional information described below and in the applicable
Prospectus Supplement under “Documents Incorporated by Reference”.
Investors should
rely only on the information contained in or incorporated by reference in this Prospectus or any applicable Prospectus Supplement. New
Gold has not authorized anyone to provide investors with different or additional information. New Gold is not making an offer of Securities
in any jurisdiction where the offer is not permitted by law. Prospective investors should not assume that the information contained in
or incorporated by reference in this Prospectus or any applicable Prospectus Supplement is accurate as of any date other than the date
on the front of those documents incorporated by reference therein or the applicable Prospectus Supplement, as applicable.
Unless New Gold
has indicated otherwise, or the context otherwise requires, references in this Prospectus to “New Gold” or the “Company”
refer to New Gold Inc. and, as applicable, its subsidiaries.
Cautionary
Statement on Forward-Looking Information
This Prospectus,
including the documents incorporated herein by reference, contains “forward-looking information” within the meaning of applicable
Canadian securities laws and “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform
Act of 1995 (collectively referred to herein as “forward-looking information” or “forward-looking statements”).
All statements in this Prospectus, other than statements of historical fact, which address events, results, outcomes or developments
that New Gold expects to occur are “forward-looking statements”. Forward-looking statements are statements that are not historical
facts and are generally, but not always, identified by the use of forward-looking terminology such as “plans”, “expects”,
“is expected”, “budget”, “scheduled”, “targeted”, “estimates”, “forecasts”,
“intends”, “anticipates”, “projects”, “potential”, “believes” or variations
of such words and phrases or statements that certain actions, events or results “may”, “could”, “would”,
“should”, “might” or “will be taken”, “occur” or “be achieved” or the negative
connotation of such terms.
In particular, this
Prospectus, including the documents incorporated herein by reference, contains forward-looking statements including, among others, statements
with respect to: the proposed issuance of Securities pursuant to a corresponding Prospectus Supplement from time to time and the details
thereof; New Gold’s expectations and guidance with respect to production, operational estimates, capital investment estimates and
exploration expense estimates on a mine-by-mine and consolidated basis, and the assumptions underlying and factors and timing contributing
to those expectations; the anticipated appointment of Mr. O’Brien as Chair upon Mr. Pearce’s retirement from New
Gold’s board of directors and the successful transition thereof; successfully accomplishing commercial production from the C-Zone
and commissioning of the underground gyrator crusher and conveyor system in the second half of 2024; successfully accessing and releasing
additional higher grade ore from the open pit in the second half of 2024 at Rainy River (as defined under the heading “New Gold”
below); expectations regarding strengthened production in the second half of 2024 and the anticipated percentage allocation of production
at Rainy River; successfully decreasing all-in sustaining costs throughout 2024 at Rainy River; successfully achieving first ore from
the underground Main Zone in the fourth quarter of 2024; the intended allocation of additional funds for exploration activities at Rainy
River in 2024; successfully ramping up and achieving a steady-state underground production rate of approximately 5,500 tonnes per day
by 2027 at Rainy River; successfully significantly increasing Rainy River gold production over the next three years; successfully increasing
development rates at Rainy River throughout the year; successfully commencing infill drilling at Rainy River in the second quarter of
2024; successfully completing exploration drilling to extend the D-Zone resource envelope in the second quarter of 2024; successfully
completing New Gold’s growth projects and achieving significant increase in production in coming years as a result thereof; the
potential to successfully extend the New Afton mine (as defined under the heading “New Gold” below) life beyond 2030 and
the Rainy River mine life beyond 2031 with minimal capital investment; successfully achieving C-Zone hydraulic radius in the second half
of 2024; achieving a processing rate of more than 14,500 tonnes per day and significantly reducing unit operating costs per tonne at
New Afton; successfully achieving high-capacity, low-cost, low-emission materials handling post fourth quarter 2024 for the remaining
C-Zone life-of-mine; successfully completing the exploration drift at New Afton in the second quarter, with drilling commencing as expected
in May, and the accelerated exploration efforts expected as a result thereof; successfully accomplishing the targeted sustainable production
platform of 600,000 gold eq. ounces per year until at least 2030; planned activities in 2024 and future years at the Rainy River mine
and New Afton mine, including planned development and exploration activities, and projected accuracy of timing and related expenses;
the current and future financial performance of New Gold as it relates to the prevailing price of gold; the continuation of prevailing
commodity prices and exchange rates; the continuation of operations performing in accordance with mine plans; anticipated factors impacting
New Gold’s liquidity and the continued review thereof; New Gold’s ability to implement its near-term operational plan and
to repay current and future indebtedness; planned continued advancement of C-Zone development at New Afton and the significant capital
expenditures expected to result therefrom; New Gold’s expectations regarding its liquidity position and its ability to fund its
business objectives; the anticipated timing with respect to New Gold’s contractual commitments becoming due; the sufficiency of
New Gold’s financial performance measures in evaluating the underlying performance of the Company; expectations that foreign exchange
forward contracts will continue into the remainder of 2024; expectations regarding the management and mitigation of risk factors and
the possible impacts on New Gold; and New Gold’s continued focus on the health, safety and well-being of its people.
All forward-looking
statements in this Prospectus and the documents incorporated by reference herein are based on the opinions and estimates of management
as of the date such statements are made and are subject to important risk factors and uncertainties, many of which are beyond New Gold’s
ability to control or predict. Certain material assumptions regarding such forward-looking statements are discussed in the Annual Information
Form, Annual Management’s Discussion and Analysis and Interim Management’s Discussion and Analysis (as each such term is
defined under the heading “Documents Incorporated by Reference” below) and its Technical Reports (as defined in the Annual
Information Form) filed on SEDAR+ (www.sedarplus.ca) and EDGAR (www.sec.gov). In addition to, and subject to, assumptions discussed in
more detail elsewhere, the forward-looking statements in this Prospectus are also subject to the following assumptions: (i) there
being no significant disruptions affecting New Gold’s operations, including material disruptions to New Gold’s supply chain,
workforce or otherwise; (ii) political and legal developments in jurisdictions where New Gold operates, or may in the future operate,
being consistent with New Gold’s current expectations; (iii) the accuracy of New Gold’s current mineral reserve and
mineral resource estimates and the grade of gold, silver and copper expected to be mined; (iv) the exchange rate between the Canadian
dollar and U.S. dollar and, to a lesser extent, the Mexican peso, and commodity prices being approximately consistent with current levels
and expectations for the purposes of 2024 guidance and otherwise; (v) prices for diesel, natural gas, fuel oil, electricity and
other key supplies being approximately consistent with current levels; (vi) equipment, labour and materials costs increasing on
a basis consistent with New Gold’s current expectations; (vii) arrangements with First Nations and other Indigenous groups
in respect of the New Afton mine and the Rainy River mine being consistent with New Gold’s current expectations; (viii) all
required permits, licenses and authorizations being obtained from the relevant governments and other relevant stakeholders within the
expected timelines and the absence of material negative comments or obstacles during the applicable regulatory processes; and (ix) the
results of the life of mine plans for the Rainy River mine and the New Afton mine being realized.
Forward-looking
statements are necessarily based upon a number of estimates and assumptions including material estimates and assumptions related to the
factors set forth below that, while considered reasonable by New Gold as at the date of this Prospectus in light of management’s
experience and perception of current conditions and expected developments, are inherently subject to significant business, economic and
competitive uncertainties and contingencies. Known and unknown factors could cause actual results to differ materially from those projected
in the forward-looking statements and undue reliance should not be placed on such statements and information. Such factors include, without
limitation: price volatility in the spot and forward markets for metals and other commodities; discrepancies between actual and estimated
production, actual and estimated costs, actual and estimated mineral reserves and mineral resources and actual and estimated metallurgical
recoveries; equipment malfunction, failure or unavailability; accidents; risks related to early production at the Rainy River mine, including
failure of equipment, machinery, the process circuit or other processes to perform as designed or intended; the speculative nature of
mineral exploration and development, including the risks of obtaining and maintaining the validity and enforceability of the necessary
licenses and permits and complying with the permitting requirements of each jurisdiction in which New Gold operates, including, but not
limited to: uncertainties and unanticipated delays associated with obtaining and maintaining necessary licenses, permits and authorizations
and complying with permitting requirements; changes in project parameters as plans continue to be refined; changing costs, timelines
and development schedules as it relates to construction; New Gold not being able to complete its construction projects at the Rainy River
mine or the New Afton mine on the anticipated timeline or at all; volatility in the market price of New Gold’s securities; changes
in national and local government legislation in the countries in which New Gold does or may in the future carry on business; controls,
regulations and political or economic developments in the countries in which New Gold does or may in the future carry on business; compliance
with public company disclosure obligations; New Gold’s dependence on the Rainy River mine and New Afton mine; New Gold not being
able to complete its exploration drilling programs on the anticipated timeline or at all; inadequate water management and stewardship;
tailings storage facilities and structure failures; failing to complete stabilization projects according to plan; geotechnical instability
and conditions; disruptions to New Gold’s workforce at either the Rainy River mine or the New Afton mine, or both; significant
capital requirements and the availability and management of capital resources; additional funding requirements; diminishing quantities
or grades of mineral reserves and mineral resources; actual results of current exploration or reclamation activities; uncertainties inherent
to mining economic studies including the Technical Reports; impairments; unexpected delays and costs inherent to consulting and accommodating
rights of First Nations and other Indigenous groups; climate change, environmental risks and hazards and New Gold’s response thereto;
ability to obtain and maintain sufficient insurance; fluctuations in the international currency markets and in the rates of exchange
of the currencies of Canada, the United States and, to a lesser extent, Mexico; global economic and financial conditions and any global
or local natural events that may impede the economy or New Gold’s ability to carry on business in the normal course; inflation;
compliance with debt obligations and maintaining sufficient liquidity; the responses of relevant governments to any disease, epidemic
or pandemic outbreak not being sufficient to contain the impact of such outbreak; disruptions to New Gold’s supply chain and workforce
due to any disease, epidemic or pandemic outbreak; an economic recession or downturn as a result of any disease, epidemic or pandemic
outbreak that materially adversely affects the Company’s operations or liquidity position; taxation; fluctuation in treatment and
refining charges; transportation and processing of unrefined products; rising costs or availability of labour, supplies, fuel and equipment;
adequate infrastructure; relationships with communities, governments and other stakeholders; labour disputes; effectiveness of supply
chain due diligence; the uncertainties inherent in current and future legal challenges to which New Gold is or may become a party; defective
title to mineral claims or property or contests over claims to mineral properties; competition; loss of, or inability to attract, key
employees; use of derivative products and hedging transactions; reliance on third-party contractors; counterparty risk and the performance
of third party service providers; investment risks and uncertainty relating to the value of equity investments in public companies held
by New Gold from time to time; the success of the Company being dependent on significant capital investment; the adequacy of internal
and disclosure controls; conflicts of interest; the lack of certainty with respect to foreign operations and legal systems, which may
not be immune from the influence of political pressure, corruption or other factors that are inconsistent with the rule of law;
the successful acquisitions and integration of business arrangements and realizing the intended benefits therefrom; and information systems
security threats. In addition, there are risks and hazards associated with the business of mineral exploration, development, construction,
operation and mining, including but not limited to environmental events and hazards, industrial accidents, unusual or unexpected formations,
pressures, cave-ins, flooding and gold bullion losses (and the risk of inadequate insurance or inability to obtain insurance to cover
these risks).
These uncertainties
and contingencies can affect New Gold’s actual results and could cause actual results to differ materially from those expressed
or implied in any forward-looking statements made by, or on behalf of, New Gold. Readers are cautioned that forward-looking statements
are not guarantees of future performance. For additional information with respect to New Gold’s risk factors, reference should
be made to the section of this Prospectus entitled “Risk Factors”, to the documents incorporated herein by reference and
to New Gold’s continuous disclosure materials filed from time to time with Canadian and United States securities regulatory authorities.
Specific reference is made to the most recent Form 40-F and Annual Information Form, Annual Management’s Discussion and Analysis
and Interim Management’s Discussion and Analysis on file with the SEC and Canadian securities regulatory authorities for a more
detailed discussion of some of the factors underlying forward-looking statements and the risks that may affect New Gold’s ability
to achieve the expectations set forth in the forward-looking statements contained in this Prospectus.
All forward-looking
information in this Prospectus and in the documents incorporated herein by reference is qualified in its entirety by the above cautionary
statements and New Gold disclaims any intention or obligation to update or revise any oral or written forward-looking statements whether
as a result of new information, future events or otherwise, except as required by applicable law.
Use
of Non-GAAP Financial Measures
This Prospectus,
including the documents incorporated herein by reference, contains non-GAAP financial measures including “total cash costs”
or “cash costs”, “sustaining capital and sustaining leases”, “growth capital”, “all-in sustaining
costs” or “AISC”, “adjusted net earnings/(loss)”, “adjusted net earnings/(loss) per share”,
“adjusted tax expense (recovery)”, “cash generated from operations before changes in non-cash operating working capital”,
“free cash flow” “average realized price per gold ounce or copper pound sold”, “open pit net mining cost
per operating tonne mined”, “underground net mining costs per operating tonne mined”, “processing costs per tonne
processed” and “G&A costs per tonne”. For a detailed description of each of the non-GAAP measures used in this
Prospectus, including the documents incorporated herein by reference, and a detailed reconciliation to the most directly comparable measure
under IFRS as issued by IASB, refer to the “Non-GAAP Financial Performance Measures” section of the Annual Management’s
Discussion and Analysis (as defined under the heading “Documents Incorporated by Reference” below) on pages 32 to 45
and on pages 27 to 37 of the Interim Management’s Discussion and Analysis. The non-GAAP financial measures set out in this
Prospectus, including the documents incorporated herein by reference, are intended to provide additional information to investors and
do not have any standardized meaning under IFRS as issued by IASB, and therefore may not be comparable to other issuers, and should not
be considered in isolation or as a substitute for measures of performance prepared in accordance with IFRS as issued by IASB.
CAUTIONARY NOTE
TO UNITED STATES INVESTORS
New Gold is permitted
under the 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 herein and any Prospectus Supplement, in accordance with the
requirements of Canadian securities law, which differ from the requirements of United States securities laws. Financial statements included
or incorporated by reference herein have been prepared in accordance with IFRS as issued by IASB and thus may not be comparable to financial
statements of United States companies.
New Gold’s
mineral reserves and mineral resources have been estimated as at December 31, 2023 in accordance with National Instrument 43-101
– Standards of Disclosure for Mineral Projects (“NI 43-101”) as required by Canadian securities regulatory
authorities.
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. NI 43-101 differs significantly from the disclosure requirements
of the SEC generally applicable to United States companies. For example, the terms “mineral reserve”, “proven mineral
reserve”, “probable mineral reserve”, “mineral resource”, “measured mineral resource”, “indicated
mineral resource” and “inferred mineral resource” are defined in NI 43-101. These definitions differ from the definitions
in the disclosure requirements promulgated by the SEC.
Accordingly,
information contained in this Prospectus and the documents incorporated by reference will not be comparable to similar information made
public by United States companies reporting pursuant to SEC disclosure requirements.
In addition, United
States investors are cautioned not to assume that any part or all of New Gold’s mineral resources constitute or will be converted
into reserves. These terms have a great amount of uncertainty as to their economic and legal feasibility. Accordingly, United States
investors are cautioned not to assume that any “measured”, “indicated”, or “inferred” mineral resources
that New Gold reports in this Prospectus are or will be economically or legally mineable.
Enforceability
of Certain Civil Liabilities
New Gold is a company
existing under the laws of the Province of British Columbia, Canada. Most of New Gold’s assets are located outside of the United
States. In addition, some of New Gold’s directors and officers and most of the experts named in this Prospectus are resident outside
the United States, and a significant portion of their respective assets are located outside of the United States. New Gold has 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 the Securities who reside in the United States to realize in the United States upon judgments of
courts of the United States predicated upon New Gold’s civil liability and the civil liability of its directors and officers and
experts under United States federal securities laws.
New Gold has filed
with the SEC, concurrently with the registration statement on Form F-10, of which this Prospectus forms a part, an appointment of
agent for service of process on Form F-X. Under the Form F-X, New Gold has appointed CT Corporation System, 28 Liberty Street,
New York, New York, United States 10005, as its agent for service of process in the United States in connection with any investigation
or administrative proceeding conducted by the SEC, and any civil suit or action brought against New Gold in a United States court arising
out of or related to or concerning the offering of the Securities under the registration statement.
Additionally, it
might be difficult for shareholders to enforce judgments of the United States courts based solely upon civil liability provisions of
the United States federal securities laws or the securities or “blue sky” laws of any state within the United States in a
Canadian court against New Gold or any of its non-U.S. resident directors, officers or the experts named in this Prospectus or to bring
an original action in a Canadian court to enforce liabilities based on the United States federal or state securities laws against such
persons.
Some of New Gold’s
directors, being Nicholas Chirekos, Gillian Davidson, Thomas J. McCulley and Richard O’Brien, reside outside of Canada and each
has appointed New Gold Inc., Brookfield Place, Suite 3320, 181 Bay Street, Toronto, Ontario, Canada M5J 2T3 as agent for service
of process. Investors are advised that it may not be possible to enforce judgments obtained in Canada against any person that resides
outside of Canada, even if such person has appointed an agent for service of process.
Currency
PRESENTATION and Exchange Rate Information
This Prospectus
contains references to United States dollars and Canadian dollars. All dollar amounts referenced, unless otherwise indicated, are expressed
in United States dollars. References to “US$” are to United States dollars and references to “$” and “C$”
are to Canadian dollars. The following table shows, for the periods and dates indicated, certain exchange rate information for one United
States dollar expressed in Canadian dollars. Except as indicated below, the information is based on the average daily exchange
rate as reported by the Bank of Canada. Such average daily exchange rate on May 10, 2024 was C$1.3665 = US$1.00.
| | |
Period
End | | |
Average | | |
Low | | |
High | |
| | |
| | |
| | |
| | |
| |
| | |
(C$ per
US$) | |
| Year ended December 31, | |
| | | |
| | | |
| | | |
| | |
| 2023 | |
| 1.3226 | | |
| 1.3497 | | |
| 1.3128 | | |
| 1.3875 | |
| 2022 | |
| 1.3544 | | |
| 1.3013 | | |
| 1.2451 | | |
| 1.3856 | |
| | |
| | | |
| | | |
| | | |
| | |
| Three months ended March 31, | |
| | | |
| | | |
| | | |
| | |
| 2024 | |
| 1.3555 | | |
| 1.3488 | | |
| 1.3316 | | |
| 1.3593 | |
| 2023 | |
| 1.3533 | | |
| 1.3525 | | |
| 1.3312 | | |
| 1.3807 | |
Documents
Incorporated by Reference
Information has
been incorporated by reference in this Prospectus from documents filed with securities commissions or similar regulatory authorities
in each of the provinces and territories of Canada (other than Quebec) and filed with, or furnished to, the SEC. New Gold’s
disclosure documents listed below and filed with the appropriate securities commissions or similar regulatory authorities in each of
the provinces and territories of Canada (other than Quebec) and filed with or furnished to the SEC are specifically incorporated by reference
into and form an integral part of this Prospectus:
Any document of
the type referred to above, including any material change report (other than any confidential material change report), any business acquisition
report, any Prospectus Supplements disclosing additional or updated information, and any “template version” of “marketing
materials” (each as defined in National Instrument 41-101 – General Prospectus Requirements) subsequently filed by
New Gold with such securities commissions or regulatory authorities in Canada (other than Quebec) after the date of this Prospectus,
and prior to the termination of the distribution under this Prospectus, shall be deemed to be incorporated by reference into this Prospectus.
In addition, any
document or information incorporated by reference in this Prospectus filed by New Gold with, or furnished by New Gold to, the SEC pursuant
to the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of this Prospectus
and prior to the date that is 25 months from the date hereof shall be deemed to be incorporated by reference into the registration statement
of which this Prospectus forms a part. The documents incorporated or deemed to be incorporated herein by reference contain meaningful
and material information relating to New Gold and readers should review all information contained in this Prospectus, the applicable
Prospectus Supplement and the documents incorporated or deemed to be incorporated herein by reference and therein. New Gold’s current
reports on Form 6-K and annual reports on Form 40-F are available on the SEC’s EDGAR website at www.sec.gov.
Any statement
contained in a document incorporated or deemed to be incorporated by reference in this Prospectus 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 incorporated or is deemed to be incorporated herein by reference, 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
that it modifies or supersedes. The making of a modifying or superseding statement will not be deemed an admission for any purpose 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 be deemed, except as so modified or superseded, to constitute
a part of this Prospectus.
When New Gold files
a new annual information form and audited consolidated financial statements and related management’s discussion and analysis with
and, where required, they are accepted by, the applicable securities regulatory authorities during the time that this Prospectus is valid,
the previous annual information form, the previous audited consolidated financial statements and related management discussion and analysis
and all unaudited interim consolidated financial statements and related management’s discussion and analysis for such periods and
all material change reports and business acquisition report filed prior to the commencement of New Gold’s financial year in which
the new annual information form is filed will be deemed no longer to be incorporated by reference in this Prospectus for purposes of
future offers and sales of Securities under this Prospectus. Upon new interim financial statements and the accompanying management’s
discussion and analysis being filed by New Gold with the applicable securities regulatory authorities during the term of this Prospectus,
all interim financial statements and accompanying management’s discussion and analysis filed prior to the filing of the new interim
financial statements shall be deemed no longer to be incorporated by reference into this Prospectus for purposes of future offers and
sales of Securities hereunder. In addition, upon a new information circular prepared in connection with an annual meeting of New Gold
being filed with the applicable securities regulatory authorities during the time that this Prospectus is valid, the previous information
circular prepared in connection with the prior annual meeting of New Gold will be deemed no longer to be incorporated by reference in
this Prospectus for purposes of future offers and sales of Securities under this Prospectus. The defined terms above shall be deemed
to refer to such new financial statements or management’s discussion and analysis.
A Prospectus Supplement
containing the specific terms of an offering of Securities and other information relating to the Securities, will be delivered to purchasers
of such Securities together with this Prospectus, unless an exemption from the prospectus delivery requirements is available, and will
be deemed to be incorporated by reference into this Prospectus as of the date of such Prospectus Supplement only for the purpose of the
distribution of the Securities to which the Prospectus Supplement pertains.
In addition, certain
marketing materials (as that term is defined in applicable Canadian securities legislation) may be used in connection with a distribution
of Securities under this Prospectus and the applicable Prospectus Supplement(s). Any “template version” of “marketing
materials” (as those terms are defined in applicable Canadian securities legislation) pertaining to a distribution of Securities,
and filed by the Company after the date of the Prospectus Supplement for the distribution of such Securities and before the termination
of the distribution of such Securities, will be deemed to be incorporated by reference in that Prospectus Supplement for the purposes
of the distribution of Securities to which the Prospectus Supplement pertains.
Copies of the documents
incorporated herein by reference may be obtained on request without charge from the Corporate Secretary of New Gold at Brookfield Place,
Suite 3320, 181 Bay Street, Toronto, Ontario, Canada M5J 2T3, (416) 324-6000. These documents are also available through the Internet
on SEDAR+, which can be accessed at www.sedarplus.ca, and EDGAR, which can be accessed at www.sec.gov. The information contained on,
or accessible through, New Gold’s website or any of the websites listed below is not incorporated by reference into this Prospectus
and is not, and should not be considered to be, a part of this Prospectus, unless it is explicitly so incorporated.
Where
you can Find Additional Information
In addition to New
Gold’s continuous disclosure obligations under the securities laws of the provinces and territories of Canada, New Gold is subject
to the informational requirements of the Exchange Act and in accordance therewith files and furnishes reports and other information with
the SEC. Under the multi-jurisdictional disclosure system adopted by the United States, such reports and other information may be prepared
in accordance with the disclosure requirements of Canada, which requirements are different from those of the United States. As a foreign
private issuer, New Gold is exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements,
and New Gold’s officers and directors are exempt from the reporting and short swing profit recovery provisions contained in Section 16
of the Exchange Act. Some of the documents that New Gold files with or furnishes to the SEC are electronically available from the SEC’s
Electronic Document Gathering and Retrieval system, which is commonly known by the acronym “EDGAR”, and may be accessed at
www.sec.gov.
New Gold has filed
with the SEC a registration statement on Form F-10 under the U.S. Securities Act of 1933, as amended (the “U.S. Securities
Act”), with respect to the Securities offered by this Prospectus. This Prospectus, which forms a part of the registration statement,
does not contain all of the information set forth in the registration statement, certain parts of which have been omitted in accordance
with the rules and regulations of the SEC. For further information with respect to New Gold and the Securities offered in this Prospectus,
reference is made to the registration statement and to the schedules and exhibits filed therewith. Statements contained in this Prospectus
as to the contents of certain documents are not necessarily complete and, in each instance, reference is made to the copy of the document
filed as an exhibit to the registration statement. Each such statement is qualified in its entirety by such reference. See “Documents
Filed as Part of the Registration Statement”.
Presentation
of Financial Information
New Gold presents
its consolidated financial statements in United States dollars and its consolidated financial statements are prepared in accordance with
IFRS as issued by the IASB. Unless otherwise indicated, financial information included or incorporated by reference in this Prospectus
has been prepared in accordance with IFRS as issued by IASB. As a result, certain financial information included or incorporated by reference
in this Prospectus may not be comparable to financial information prepared by companies in the United States. Certain calculations included
in tables and other figures in this Prospectus have been rounded for clarity of presentation.
Risk
Factors
An investment in
the Securities involves certain risks. A prospective purchaser of Securities should carefully consider the risks and uncertainties described
in the documents incorporated by reference into this Prospectus (including subsequently filed documents incorporated by reference into
this Prospectus) and, if applicable, those described in a Prospectus Supplement relating to a specific offering of Securities. Discussions
of certain risks and uncertainties affecting New Gold’s business are provided in its Annual Information Form, Annual Management’s
Discussion and Analysis and Interim Management’s Discussion and Analysis (or, as applicable, New Gold’s annual information
form and management’s discussion and analysis for subsequent periods), each of which is incorporated by reference into this Prospectus.
Additional risks not presently known to New Gold or that New Gold currently considers immaterial may also materially and adversely affect
the Company. If any of the events identified in these risks and uncertainties were to actually occur, New Gold’s business, financial
condition or results of operations could be materially harmed.
In addition, prospective
purchasers of Securities should carefully consider, in light of their own financial circumstances, the risk factors set out below, as
well as the other information contained in this Prospectus (including the documents incorporated herein by reference) and in all subsequently
filed documents incorporated by reference and those described in a Prospectus Supplement relating to a specific offering of Securities,
before making an investment decision.
There is no existing
public market for the Securities (other than Common Shares) and a market may not develop.
There is currently
no market through which the Securities (other than Common Shares) may be sold and purchasers of such Securities may not be able to resell
such Securities purchased under this Prospectus. There can be no assurance that an active trading market will develop for the Securities
(other than Common Shares) after an offering or, if developed, that such market will be sustained. This may affect the pricing of the
Securities (other than Common Shares) in the secondary market, the transparency and availability of trading prices, the liquidity of
such Securities and the extent of issuer regulation.
The public offering
prices of the Securities may be determined by negotiation between New Gold and underwriters, dealers or agents based on several factors
and may bear no relationship to the prices at which the Securities will trade in the public market subsequent to such offering, if any
public market develops. See “Plan of Distribution”.
Shareholders may face potential dilution.
New Gold’s
notice of articles and articles of incorporation allow New Gold to issue an unlimited number of Common Shares for such consideration
and on such terms and conditions as shall be established by New Gold’s board of directors, in many cases, without the approval
of New Gold’s shareholders. New Gold may issue Common Shares in public or private offerings (including through the sale of Securities
convertible into or exchangeable for Common Shares) and on the exercise of stock options or other securities exercisable for Common Shares.
New Gold may also issue Common Shares to finance, or as consideration for, future acquisitions and other projects or in connection with
the establishment or development of strategic relationships. Any such future issuances of Common Shares could be significant, and New
Gold cannot predict the effect that future issuances and sales of Common Shares will have on the market price of the Common Shares. Issuances
of a substantial number of additional Common Shares, or the perception that such issuances could occur, may adversely affect prevailing
market prices for Common Shares. With any additional issuance of Common Shares, investors will suffer dilution to their voting power,
and New Gold may experience dilution in its earnings per share.
ABOUT
New Gold
New Gold is a Canadian-focused
intermediate gold mining company engaged in the exploration, development and operation of mineral properties. New Gold currently has
the following interests in mines: (i) a 100% interest in the Rainy River gold mine in Ontario, Canada (“Rainy River”
or the “Rainy River mine”), and (ii) a 100% interest in the New Afton copper-gold mine in British Columbia, Canada
(“New Afton” or the “New Afton mine”). New Gold also holds a 100% interest in the Cerro San Pedro
gold-silver mine in San Luis Potosí, Mexico, which transitioned to the post-closure phase at the beginning of 2024. New Gold has
been engaged in the acquisition, exploration and development of natural resource properties since 1980. New Gold’s current structure
arose through two accretive business combinations in mid-2008 and mid-2009. New Gold is continually working to maximize shareholder value
through diversified production, maintaining an attractive risk profile and enhancing growth potential in a safe and an environmentally
and socially responsible manner. The Company also holds Canadian-focused investments.
New Gold is a company
formed under the Business Corporations Act (British Columbia). Originally, New Gold was incorporated on January 31, 1980
as DRC Resources Corporation under the Company Act (British Columbia) and was transitioned on May 10, 2005 under the Business
Corporations Act (British Columbia). On May 4, 2005, the shareholders of the Company passed a special resolution to remove the
pre-existing company provisions and adopt new articles. On June 1, 2005, the Company changed its name to New Gold Inc. Effective
January 1, 2012, New Gold amalgamated with its wholly-owned subsidiaries Silver Quest Resources Ltd., Geo Minerals Ltd. and Richfield
Ventures Corp. Effective October 1, 2014, New Gold amalgamated with its wholly-owned subsidiaries Rainy River Resources Ltd. and
0608457 B.C. Ltd. On January 1, 2016, New Gold amalgamated with its wholly-owned subsidiaries Peak Gold Ltd. and New Gold Bayfield
Corp. Following each such amalgamation, the amalgamated company continued as New Gold Inc.
New Gold’s
corporate office is located at Brookfield Place, Suite 3320, 181 Bay Street, Toronto, Ontario, Canada M5J 2T3. New Gold’s
registered office is located at 1600 – 925 West Georgia Street, Vancouver, British Columbia, Canada V6C 3L2.
Share
Structure
New Gold’s
authorized share capital consists of an unlimited number of Common Shares. As of May 10, 2024, New Gold had 690,079,951 Common Shares
issued and outstanding.
Consolidated
Capitalization
There have been
no material changes in the share and loan capital of New Gold, on a consolidated basis, since March 31, 2024, the date of the New
Gold’s most recently filed financial statements.
Earnings
Coverage Ratios
The applicable Prospectus
Supplement will provide, as required, the earnings coverage ratios with respect to the issuance of Securities pursuant to such Prospectus
Supplement.
Use
of Proceeds
The use of proceeds
from the issue and sale of specific Securities pursuant to this Prospectus will be described in the Prospectus Supplement relating to
the issuance and sale of such Securities.
Dividends
To date, New Gold
has not paid dividends on its Common Shares. New Gold currently intends to retain future earnings, if any, for use in its business and
does not, at this time, anticipate paying dividends on its Common Shares. Any determination to pay any future dividends will remain at
the discretion of New Gold’s board of directors and will be made taking into account its financial condition and other factors
deemed relevant by the board. Further, pursuant to debt instruments of New Gold in place from time to time, New Gold may, in certain
circumstances, be required to obtain consent from lenders prior to declaring dividends.
Description
of Securities Offered
Common
Shares
Holders of Common
Shares are entitled to receive notice of any meetings of shareholders of the Company, and to attend and to cast one vote per Common Share
at all such meetings. Holders of Common Shares do not have cumulative voting rights with respect to the election of directors and, accordingly,
holders of a majority of the Common Shares entitled to vote in any election of directors may elect all directors standing for election.
Holders of Common
Shares are entitled to receive on a pro-rata basis such dividends, if any, as and when declared by the Company’s board of directors
at its discretion from funds legally available therefor and, on the liquidation, dissolution or winding up of the Company, are entitled
to receive on a pro-rata basis the net assets of the Company 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 ranking senior in priority to or on
a pro-rata basis with the holders of Common Shares with respect to dividends or liquidation. The Common Shares do not carry any pre-emptive,
subscription, redemption or conversion rights.
Debt
Securities
In this description
of Debt Securities, “New Gold” or the “Company” refer to New Gold Inc., but not to its subsidiaries. This section
describes the general terms that will apply to any Debt Securities issued pursuant to this Prospectus. New Gold may issue Debt Securities
in one or more series under an indenture to be entered into between New Gold and one or more trustees that will be named in a Prospectus
Supplement for a series of Debt Securities. Such indenture will be subject to and governed by the United States Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”). A copy of the form of indenture relating to the Debt Securities has
been filed as an exhibit to New Gold’s registration statement filed with the SEC and will be filed with the securities regulatory
authorities in provinces and territories of Canada when it is entered into. The following description sets forth certain general terms
and provisions of the Debt Securities and is not intended to be complete. For a more complete description, prospective investors should
refer to the indenture and the terms of the Debt Securities, once it has been entered into. If Debt Securities are issued, New Gold will
describe in the applicable Prospectus Supplement the particular terms and provisions of any series of the Debt Securities and a description
of how the general terms and provisions described below may apply to that series of the Debt Securities. Prospective investors should
rely on information in the applicable Prospectus Supplement and not on the following information to the extent that the information in
such Prospectus Supplement is different from the following information.
Unless otherwise
indicated in the applicable Prospectus Supplement, the Debt Securities will be unsecured obligations of New Gold. New Gold may also issue
Debt Securities and incur additional indebtedness other than through the offering of Debt Securities pursuant to this Prospectus.
The applicable Prospectus
Supplement for any series of Debt Securities that New Gold offers will describe the specific terms of the Debt Securities and may include,
but is not limited to, any of the following:
| • | the
title of the Debt Securities; |
| • | whether
payment on the Debt Securities will be senior or subordinated to, or rank pari passu with,
other liabilities or obligations of New Gold; |
| • | the
aggregate principal amount of the Debt Securities; |
| • | the
percentage of principal amount at which the Debt Securities will be issued; |
| • | the
date or dates, or the methods by which such dates will be determined or extended, on which
New Gold will pay the principal and any premium on the Debt Securities and the portion (if
less than the principal amount) of Debt Securities to be payable upon a declaration of acceleration
of maturity; |
| • | whether
the Debt Securities will bear interest, the interest rate (whether fixed or variable) or
the method of determining the interest rate, the date from which interest will accrue, the
dates on which New Gold will pay interest and the record dates for interest payments, or
the methods by which such dates will be determined or extended; |
| • | whether
New Gold will be obligated to redeem or repurchase the Debt Securities pursuant to any sinking
or purchase fund or other provisions, or at the option of a holder and the terms and conditions
of such redemption; |
| • | whether
New Gold may redeem the Debt Securities at its option and the terms and conditions of any
such redemption; |
| • | the
events of default and covenants applicable to the Debt Securities; |
| • | the
terms, if any, for any conversion or exchange of the Debt Securities for any other securities; |
| • | whether
New Gold will issue the Debt Securities as global securities and, if so, the identity of
the depositary for the global securities; |
| • | the
denominations in which New Gold will issue any registered Debt Securities; |
| • | the
place or places New Gold will pay principal, premium, if any, and interest, if any, and the
place or places where Debt Securities can be presented for registration of transfer or exchange; |
| • | whether
New Gold will make payments on the Debt Securities in a currency or currency unit other than
U.S. dollars or by delivery of its Common Shares or other property; |
| • | material
Canadian federal income tax consequences and U.S. federal income tax consequences of owning
the Debt Securities; |
| • | whether
payments on the Debt Securities will be payable with reference to any index or formula; |
| • | whether
the payment of the Debt Securities will be guaranteed by any other person; |
| • | whether
New Gold will issue the Debt Securities as unregistered securities (with or without coupons),
registered securities or both; and |
| • | any
other terms, conditions, rights and preferences (or limitations on such rights and preferences)
including covenants and events of default which apply solely to a particular series of the
Debt Securities being offered which do not apply generally to other Debt Securities, or any
covenants or events of default generally applicable to the Debt Securities which do not apply
to a particular series of the Debt Securities. |
New Gold may issue
Debt Securities with terms different from those of Debt Securities previously issued.
Modifications
New Gold may modify
the indenture without the consent of the holders of the Debt Securities to cure any ambiguity, correct or supplement any defective or
inconsistent provision, make any other provisions, in each case that would not materially and adversely affect the interests of holders
of outstanding securities and related coupons, if any. Other amendment provisions will be as indicated in the applicable Prospectus Supplement.
Subscription
Receipts
Subscription Receipts
may be offered separately or together with Common Shares, Debt Securities or Warrants, as the case may be. Subscription Receipts will
be issued under a subscription receipt agreement (a “Subscription Receipt Agreement”) that will be entered into between
New Gold and the escrow agent (the “Escrow Agent”) at the time of issuance of the Subscription Receipts. Each Escrow
Agent will be a financial institution authorized to carry on business as a trustee. If underwriters or agents are used in the sale of
any Subscription Receipts, one or more of such underwriters or agents may also be a party to the Subscription Receipt Agreement governing
the Subscription Receipts sold to or through such underwriter or agent.
Terms of the Subscription Receipts
The Subscription
Receipt Agreement will provide each initial Canadian purchaser of Subscription Receipts with a non-assignable contractual right of rescission
following the issuance of any underlying Securities to such purchaser upon the exchange of the Subscription Receipts if this Prospectus,
the Prospectus Supplement under which the Subscription Receipts are offered, or any amendment hereto or thereto contains a misrepresentation,
as such term is defined in the Securities Act (Ontario). This contractual right of rescission will entitle such initial Canadian
purchaser to receive the amount paid for the Subscription Receipts upon surrender of the underlying Securities issued in exchange therefor,
provided that such remedy for rescission is exercised in the time stipulated in the Subscription Receipt Agreement. This right of rescission
will not extend to any holders of Subscription Receipts who acquire such Subscription Receipts from an initial purchaser on the open
market or otherwise.
The applicable Prospectus
Supplement will include details of the Subscription Receipt Agreement covering the Subscription Receipts being offered. 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. A copy of the Subscription Receipt Agreement will be filed by New Gold with
securities regulatory authorities in the provinces and territories of Canada and the United States after it has been entered into by
New Gold and will be available on its SEDAR+ profile at www.sedarplus.ca and on EDGAR at www.sec.gov.
This section describes
the general terms that will apply to any Subscription Receipts being offered. The terms and provisions of any Subscription Receipts offered
under a Prospectus Supplement may differ from the terms described below, and may not be subject to or contain any or all of such terms.
The particular terms of each issue of Subscription Receipts that will be described in the related Prospectus Supplement will include,
where applicable:
| • | the
number of Subscription Receipts; |
| • | the
price at which the Subscription Receipts will be offered; |
| • | conditions
(the “Release Conditions”) for the exchange of Subscription Receipts into
underlying Securities, and the consequences of such conditions not being satisfied; |
| • | the
procedures for the exchange of the Subscription Receipts into underlying Securities; |
| • | the
number of underlying Securities to be exchanged for each Subscription Receipt; |
| • | the
currency or currency unit for which Subscription Receipts may be purchased and the aggregate
principal amount, currency or currencies, denominations and terms of the series of underlying
Securities that may be exchanged upon exercise of each Subscription Receipt; |
| • | 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; |
| • | the
dates or periods during which the Subscription Receipts may be exchanged into underlying
Securities; |
| • | the
identity of the Escrow Agent; |
| • | the
terms and conditions under which the Escrow Agent will hold all or a portion of the gross
proceeds from the sale of such Subscription Receipts, together with interest and income earned
thereon (the “Escrowed Funds”) pending satisfaction of the Release Conditions; |
| • | the
terms and conditions under which the Escrow Agent will release all or a portion of the Escrowed
Funds to New Gold upon satisfaction of the Release Conditions and if the Subscription Receipts
are sold to or through underwriters or agents, the terms and conditions under which the Escrow
Agent will release a portion of the Escrowed Funds to such underwriters or agents in payment
of all or a portion of their fees or commissions in connection with the sale of the Subscription
Receipts; |
| • | procedures
for the payment by the Escrow Agent to holders of such Subscription Receipts of an amount
equal to all or a portion of the subscription price of their Subscription Receipts, plus
any additional amounts provided for in the Subscription Receipt Agreement, if the Release
Conditions are not satisfied; |
| • | the
securities exchange(s) on which the Subscription Receipts will be listed, if any; and |
| • | any
other material terms and conditions of the Subscription Receipts. |
Prior to the exchange
of their Subscription Receipts, holders of Subscription Receipts will not have any of the rights of holders of the underlying Securities
to be received on the exchange of the Subscription Receipts.
Escrow
The Subscription
Receipt Agreement will provide that the Escrowed Funds will be held in escrow by the Escrow Agent, and such Escrowed Funds will be released
to New Gold (and, if the Subscription Receipts are sold to or through underwriters or agents, a portion of the Escrowed Funds may be
released to such underwriters or agents in payment of all or a portion of their fees in connection with the sale of the Subscription
Receipts) at the time and under the terms specified by the Subscription Receipt Agreement. If the Release Conditions are not satisfied,
holders of Subscription Receipts will receive payment of an amount equal to all or a portion of the subscription price for their Subscription
Receipts, plus any additional amounts provided for in the Subscription Receipt Agreement, in accordance with the terms of the Subscription
Receipt Agreement.
Modifications
The Subscription
Receipt Agreement will specify the terms upon which modifications and alterations to the Subscription Receipts issued thereunder may
be made by way of a resolution of holders of Subscription Receipts at a meeting of such holders or by way of consent in writing from
such holders. The number of holders of Subscription Receipts required to pass such a resolution or execute such a written consent will
be specified in the Subscription Receipt Agreement. The Subscription Receipt Agreement will also specify that New Gold may amend the
Subscription Receipt Agreement and the Subscription Receipts, without the consent of the holders of the Subscription Receipts, to cure
any ambiguity, to cure, correct or supplement any defective or inconsistent provision, or in any other manner that will not materially
and adversely affect the interests of the holder of outstanding Subscription Receipts or as otherwise specified in the Subscription Receipt
Agreement.
Warrants
The following sets
forth certain general terms and provisions of the Warrants. New Gold may issue Warrants for the purchase of Common Shares, Debt Securities
or other Securities. Warrants may be issued independently or together with Common Shares, Debt Securities, Subscription Receipts or other
Securities offered by any Prospectus Supplement and may be attached to, or separate from, any such offered Securities. Each series of
Warrants will be issued under a warrant agreement between New Gold and a warrant agent that New Gold will name in the applicable Prospectus
Supplement.
Terms of the Warrants
Each initial Canadian
purchaser of Warrants that are exercisable within 180 days of the date of purchase will have a non-assignable contractual right of rescission
following the issuance of any securities to such purchaser upon the exercise of the Warrants if this Prospectus, the Prospectus Supplement
under which the Warrants are offered, or any amendment hereto or thereto contains a misrepresentation, as such term is defined in the
Securities Act (Ontario). This contractual right of rescission will entitle such initial Canadian purchaser to receive the amount
paid for the Warrants upon surrender of the securities issued on the exercise thereof, including any amount paid by such original holder
in connection with such exercise, provided that such remedy for rescission is exercised within 180 days from the date of the purchase
of such Warrants under the applicable Prospectus Supplement. This right of rescission will not extend to any holders of Warrants who
acquire such Warrants from an initial purchaser on the open market or otherwise.
The applicable Prospectus
Supplement will include details of the warrant agreement(s) covering 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 forth in the applicable Prospectus
Supplement. A copy of the warrant agreement will be filed by New Gold with securities regulatory authorities in the provinces and territories
of Canada and the United States after it has been entered into by New Gold and will be available on New Gold’s SEDAR+ profile at
www.sedarplus.ca.
This section describes
the general terms that will apply to any Warrants being offered. The terms and provisions of any Warrants offered under a Prospectus
Supplement may differ from the terms described below, and may not be subject to or contain any or all of such terms. The particular terms
of each issue of Warrants that will be described in the related Prospectus Supplement will include, where applicable:
| • | the
designation of the Warrants; |
| • | the
aggregate number of Warrants offered and the offering price; |
| • | the
designation, number and terms of the Common Shares, Debt Securities or other Securities purchasable
upon exercise of the Warrants, and procedures that will result in the adjustment of those
numbers; |
| • | the
exercise price of the Warrants; |
| • | the
dates or periods during which the Warrants are exercisable; |
| • | the
designation and terms of any securities with which the Warrants are issued; |
| • | if
the Warrants are issued as a Unit with another Security, the date on and after which the
Warrants and the other Security will be separately transferable; |
| • | the
currency or currency unit in which the exercise price is denominated; |
| • | whether
such Warrants will be subject to redemption or call, and if so, the terms of such redemption
or call provisions; |
| • | any
minimum or maximum amount of Warrants that may be exercised at any one time; |
| • | whether
such Warrants will be listed on any securities exchange; |
| • | any
terms, procedures and limitations relating to the transferability, exchange or exercise of
the Warrants; |
| • | any
rights, privileges, restrictions and conditions attaching to the Warrants; and |
| • | any
other specific terms. |
Modifications
New Gold may amend
any warrant agreement and the Warrants without the consent of the holders of the Warrants in certain circumstances including to cure
any ambiguity, to cure, correct or supplement any defective or inconsistent provision, or in any other manner that will not materially
and adversely affect the interests of holders of outstanding Warrants. A more detailed description of the amendment provisions will be
included in the applicable Prospectus Supplement.
Enforceability
The warrant agent
will act solely as agent of New Gold. The warrant agent will not have any duty or responsibility if New Gold defaults under the warrant
agreements or the warrant certificates. A Warrant holder may, without the consent of the warrant agent, enforce, by appropriate legal
action on its own behalf, the holder’s right to exercise the holder’s Warrants.
Units
The following sets
forth certain general terms and provisions of the Units. New Gold may issue Units composed of one or more of the other Securities in
any combination. Each Unit will be issued so that the holder of the Unit is also the holder of each Security 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 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.
Terms of the Units
Any Prospectus Supplement
for Units supplementing this Prospectus will contain the terms and other information with respect to the Units being offered thereby,
including, where applicable:
| • | the
designation and terms of the Units and of the Securities comprising the Units, including
whether and under what circumstances those Securities may be held or transferred separately; |
| • | any
provisions for the issuance, payment, settlement, transfer or exchange of the Units or of
the Securities comprising the Units; |
| • | how,
for income tax purposes, the purchase price paid for the Units is to be allocated among the
component Securities; |
| • | the
currency or currency units in which the Units may be purchased and the underlying Securities
denominated; |
| • | the
securities exchange(s) on which such Units will be listed, if any; and |
| • | any
other specific terms of the Units and the underlying Securities. |
The preceding description
and any description of Units in the applicable Prospectus Supplement does not purport to be complete and is subject to and is qualified
in its entirety by reference to the unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to
such Units.
Modifications
New Gold may amend
the unit agreement and the Units, without the consent of the holders of the Units, to cure any ambiguity, to cure, correct or supplement
any defective or inconsistent provision, or in any other manner that will not materially and adversely affect the interests of holders
of outstanding Units. Other amendment provisions will be as indicated in the applicable Prospectus Supplement.
Prior
Sales
Prior sales information
will be provided, as required, in each Prospectus Supplement with respect to the issuance of Securities pursuant to such Prospectus Supplement.
Trading
Prices and Volumes
Trading prices and
volumes of the Common Shares will be provided, as required, in each Prospectus Supplement to this Prospectus.
Plan
of Distribution
New Gold may offer
and sell the Securities, separately or together, to or through one or more underwriters or dealers, purchasing as principals for public
offering and sale by them, and may also sell Securities to one or more other purchasers directly or through agents. Securities sold to
the public pursuant to this Prospectus may be offered and sold exclusively in Canada (other than in Quebec) or the United States, or
in both jurisdictions. The Prospectus Supplement relating to an offering of Securities will indicate the jurisdiction or jurisdictions
in which such offering is being made to the public. Each Prospectus Supplement will set out the terms of the offering, including the
name or names of any underwriters, dealers or agents, the purchase price or prices of the Securities (or the manner of determination
thereof if offered on a non-fixed price basis), and the proceeds to New Gold from the sale of the Securities. Only underwriters, dealers
or agents so named in the Prospectus Supplement are deemed to be underwriters, dealers or agents, as the case may be, in connection with
the Securities offered thereby.
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. The prices at which the Securities may
be offered may vary 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, dealers or agents will be decreased by the amount that the aggregate price paid by purchasers for the Securities
is less than the gross proceeds paid by the underwriters, dealers or agents to New Gold.
Underwriters, dealers
or agents may make sales of Securities in privately negotiated transactions and/or any other method permitted by law.
If underwriters
or dealers purchase Securities as principals, the Securities will be acquired by the underwriters or dealers for their own account and
may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The obligations of the underwriters or dealers to purchase those Securities will be subject
to certain conditions precedent, and the underwriters or dealers will be obligated to purchase all the Securities offered by the Prospectus
Supplement if any of such Securities are purchased. Any public offering price and any discounts or concessions allowed or re-allowed
or paid may be changed from time to time.
The Securities may
also be sold directly by New Gold in accordance with applicable securities laws at prices and upon terms agreed to by the purchaser and
New Gold, or through agents designated by New Gold, from time to time. Any agent involved in the offering and sale of Securities pursuant
to a particular Prospectus Supplement will be named, and any commissions payable by New Gold to that agent will be set forth in such
Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement, any agent would be acting on a best efforts basis for
the period of its appointment.
In connection with
the sale of the Securities, underwriters, dealers or agents may receive compensation from New Gold in the form of commissions, concessions
and discounts. Any such commissions payable by New Gold may be paid out of its general funds or the proceeds of the sale of Securities.
Underwriters, dealers and agents who participate in the distribution of the Securities may be entitled under agreements to be entered
into with New Gold to indemnification by New Gold against certain liabilities, including liabilities under applicable securities legislation,
or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. Such
underwriters, dealers and agents may engage in transactions with, or perform services for, New Gold in the ordinary course of business.
In connection with
any offering of Securities, the applicable Prospectus Supplement will set forth any intention by the underwriters, dealers or agents
to over-allocate or effect transactions which stabilize or maintain the market price of the Securities offered at a level above that
which might otherwise prevail in the open market. Such transactions, if commenced, may be interrupted or discontinued at any time. A
purchaser who acquires Securities forming part of the underwriters’, dealers’ or agents’ over-allocation position acquires
those Securities under this Prospectus, regardless of whether the over-allocation position is ultimately filled through the exercise
of the over-allotment option or secondary market purchases.
Certain
Income Tax Considerations
The applicable Prospectus
Supplement may describe certain material Canadian federal income tax consequences to an investor of the acquisition, ownership and disposition
of any Securities offered thereunder. The applicable Prospectus Supplement may also describe certain United States federal income tax
considerations generally applicable to the acquisition, ownership and disposition of any Securities offered thereunder by an investor
who is a United States person.
Legal
Matters
Unless otherwise
specified in a Prospectus Supplement relating to a specific offering of Securities, certain legal matters relating to the offering of
Securities will be passed upon on New Gold’s behalf by Davies Ward Phillips & Vineberg LLP in relation to Canadian law
and by Paul, Weiss, Rifkind, Wharton and Garrison LLP in relation to United States law. As of the date hereof, partners and associates
of Davies Ward Phillips & Vineberg LLP own beneficially, directly or indirectly, less than 1% of any of New Gold’s securities
or the securities of any of New Gold’s associates or affiliates.
CEASE
TRADE ORDERS OR BANKRUPTCIES
As at the date of
this Prospectus, no director or officer of the Company is, or has been within the past ten years, a director, chief executive officer
or chief financial officer of any company (including New Gold) that:
(i) was
subject to a cease trade order, an order similar to a cease trade order or an order that denied the relevant company access to any exemption
under securities legislation, that was in effect for a period of more than 30 consecutive days (collectively, an “Order”),
that was issued while the director or officer was acting in the capacity as director, chief executive officer or chief financial officer;
or
(ii) was
subject to an Order that was issued after the director or officer ceased to be a director, chief executive officer or chief financial
officer and which resulted from an event that occurred while the director or officer was acting in the capacity as director, chief executive
officer or chief financial officer.
As at the date of
this Prospectus, other than as stated below, no director or officer of the Company:
(i) is,
or has been within the past ten years, a director or executive officer of any company (including New Gold) that, while the director or
officer was acting in that capacity, or within a year of the director or officer ceasing to act in that capacity, became bankrupt, made
a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or
compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets;
(ii) has,
within the past ten years, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject
to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed
to hold the assets of the director or officer; or
(iii) has
been subject to: (a) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory
authority or has entered into a settlement agreement with a securities regulatory authority; or (b) any other penalties or sanctions
imposed by a court or regulatory body that would likely be considered important to a reasonable shareholder in making an investment decision.
Patrick Godin was
a director and the President and Chief Executive Officer of Stornoway Diamond Corporation (“Stornoway”), a Canadian
diamond exploration and production company based in Longueil, Quebec, until November 1, 2020. On September 9, 2019, Stornoway
and its subsidiaries filed and obtained an initial order from the Superior Court of Quebec (Commercial Division) (“Quebec Superior
Court”) for protection under the Companies’ Creditors Arrangement Act (Canada) (“CCAA”) to
restructure its business and financial affairs. Under the terms of the initial order, Deloitte Restructuring Inc. was appointed as monitor
to oversee the CCAA proceedings and report to the Quebec Superior Court.
Stornoway received
notice of delisting review by the Toronto Stock Exchange on August 22, 2019, and Stornoway’s securities were delisted from
the Toronto Stock Exchange effective at the close of market on October 18, 2019. The CCAA process was concluded by order of the
Superior Court of Quebec in November 2019 and Stornoway’s operating subsidiary emerged from such process, continuing its operations
on a going concern basis after the successful implementation of Stornoway’s restructuring transactions. In November 2019,
Stornoway made a voluntary assignment into bankruptcy pursuant to the Bankruptcy and Insolvency Act (Canada).
Gillian Davidson
was a director of Lydian International Limited (“Lydian”) until March 2020. Lydian and certain of its subsidiaries
were granted protection under the CCAA on December 23, 2019 and entered into a plan of arrangement with its secured creditors on
June 15, 2020. The plan was implemented on July 6, 2020 pursuant to a sanction and interim order. The Ontario Securities Commission
issued a cease trade order against Lydian on June 9, 2020 for failing to file its periodic disclosure for the period ending March 31,
2020. The cease trade order remains in effect and will remain in effect until the dissolution and wind up of Lydian is completed.
Interests
of Qualified Persons
Each of Alexander
Alousis, Kenneth Bocking, Yohann Bouchard, Jason Chiasson, Andrew Croal, Charles Gagnon, Holger Krutzelmann, Eric Lecomte, Normand L.
Lecuyer, Michele Della Libera, Francis J. McCann, Vincent Nadeau-Benoit, Dinara Nussipakynova, Joshua Parsons, David W. Rennie, Edward
Saunders, Mohammad Taghimohammadi, Justin Taylor, Luis Vasquez, Sitotaw Yirdaw and Andre Zerwer is a person who has reviewed or supervised
the preparation of information upon which certain scientific and technical information relating to New Gold’s mineral properties
contained or incorporated by reference in this Prospectus is based. None of such persons received or will receive a direct or indirect
interest in any property of New Gold or any of its associates or affiliates. As of the date hereof, each of such persons owns beneficially,
directly or indirectly, less than 1% of any outstanding class of securities of New Gold. Each of Alexander Alousis, Yohann Bouchard,
Jason Chiasson, Andrew Croal, Michele Della Libera, Vincent Nadeau-Benoit, Joshua Parsons, Mohammad Taghimohammadi and Sitotaw Yirdaw
is a qualified person who is or was at the relevant time an officer or employee of New Gold and/or an officer, director or employee of
one or more of its associates or affiliates.
Auditor
Deloitte LLP is
independent of New Gold within the meaning of the rules of professional conduct of the Chartered Professional Accountants of Ontario
and within the meaning of the U.S. Securities Act and the applicable rules and regulations thereunder adopted by the SEC and the
Public Company Accounting Oversight Board (United States). The offices of Deloitte LLP are located at 8 Adelaide Street West, Suite 200,
Toronto, Ontario, Canada M5H 0A9.
Transfer
Agent and Registrar
The transfer agent
and registrar for the Common Shares is Computershare Investor Services Inc. Transfers may be effected and registration facilities are
maintained at each of the following offices: (i) 510 Burrard Street, Vancouver, British Columbia, Canada V6C 2T5; and (ii) 100
University Avenue, Toronto, Ontario, Canada M5J 2Y1.
Documents
Filed as Part of the Registration Statement
The following documents
have been or will be filed with the SEC as part of New Gold’s registration statement: (i) the documents referred to under
the heading “Documents Incorporated by Reference”; (ii) the consent of Deloitte LLP; (iii) the consent of each
“qualified person” for the purposes of NI 43-101 listed on the Exhibit Index of the registration statement; (iv) the
power of attorney of the directors and officers of New Gold; and (v) the form of debt indenture. 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.
Well-known
Seasoned Issuer
On December 6,
2021, the securities regulatory authorities in each of the provinces and territories of Canada independently adopted a series of substantively
harmonized blanket orders, including Ontario Instrument 44-501 – Exemption from Certain Prospectus Requirements for Well-known
Seasoned Issuers (Interim Class Order), as extended by Ontario Rule 44-502 – Extension to Ontario Instrument 44-501
Certain Prospectus Requirements for Well-known Seasoned Issuers (together with the equivalent local blanket orders in each of the
other provinces and territories of Canada, collectively, the “WKSI Blanket Orders”). The WKSI Blanket Orders came
into force on January 4, 2022 and allow “well-known seasoned issuers”, or “WKSIs”, to file a final short
form base shelf prospectus as the first public step in an offering, and exempt qualifying issuers from certain disclosure requirements
relating to such final short form base shelf prospectus. New Gold has determined that, on the date hereof, it qualifies as a “well-known
seasoned issuer” under the WKSI Blanket Orders.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED
TO OFFEREES OR PURCHASERS
Indemnification
The Registrant is subject to the provisions of the Business Corporations
Act (British Columbia) (the “Act”).
Definitions
An “eligible party” is an individual who:
| · | is or was a director or officer of the Registrant; |
| · | is or was a director or officer of another corporation (i) at a time when the corporation is or was an affiliate of the Registrant,
or (ii) at the request of the Registrant; or |
| · | at the request of the Registrant, 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, except
in the definition of “eligible proceeding” and except in Sections 163(1)(c) and (d) and 165 of the Act, the heirs
and personal or other legal representatives of that individual.
An “eligible penalty” is a judgment, penalty or fine awarded
or imposed in, or an amount paid in settlement of, an eligible proceeding.
An “eligible proceeding” means 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
Registrant or an associated corporation, (a) is or may be joined as a party, or (b) 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.
Indemnification Regulation
Under Section 160(a) of
the Act, and subject to Section 163 of the Act, an eligible party may be indemnified by the Registrant against all eligible penalties
to which the eligible party is or may be liable. Section 160(b) of the Act permits the Registrant to pay the expenses actually
and reasonably incurred by an eligible party after the final disposition of the eligible proceeding in respect of that proceeding.
Under Section 161 of the Act, and subject to Section 163
of the Act, the Registrant must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred
by the eligible party in respect of that proceeding if the eligible party (a) has not been reimbursed for those expenses, and (b) is
wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome
of the proceeding.
Under Section 162 of the Act, and subject to Section 163
of the Act, the Registrant may pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually
and reasonably incurred by an eligible party in respect of that proceeding; provided the Registrant must not make such payments unless
it first receives from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited
by Section 163, the eligible party will repay the amounts advanced.
Under Section 163(1) of the Act, the Registrant must not
indemnify an eligible party under Section 160(a) of the Act, or pay the expenses of an eligible party under Sections 160(b),
161 or 162 of the Act, as the case may be, if any of the following circumstances apply:
| · | if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that the agreement to
indemnify or pay expenses was made, the Registrant was prohibited from giving the indemnity or paying the expenses by its memorandum or
articles; |
| · | 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 Registrant is prohibited from giving the indemnity or paying the expenses by its memorandum or articles; |
| · | 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 Registrant or the associated corporation, as the case may be; or |
| · | 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 party's conduct in respect of which the proceeding was brought was lawful. |
Under Section 163(2) of the Act, if an eligible proceeding
is brought against an eligible party by or on behalf of the Registrant or by or on behalf of an associated corporation, the Registrant
must neither indemnify the eligible party under Section 160(a) of the Act in respect of the proceeding, nor pay the expenses
of the eligible party under Sections 160(b), 161 or 162 of the Act in respect of the proceeding.
Under Section 164 of the Act, despite any other provision of Division
5—Indemnification of Directors and Officers and Payment of Expenses under the Act and whether or not payment of expenses or indemnification
has been sought, authorized or declined under such Division, the Supreme Court of British Columbia (the “Court”) may, on application
of the Registrant or an eligible party, may do one or more of the following:
| · | order the Registrant to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible
proceeding; |
| · | order the Registrant to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding; |
| · | order the enforcement of, or any payment under, an agreement of indemnification entered into by the Registrant; |
| · | order the Registrant to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under
this section; or |
| · | make any other order the Court considers appropriate. |
Under Section 165 of the Act, the Registrant 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 Registrant or an associated corporation.
The articles of a company may affect its power or obligation to give
an indemnity or pay expenses. As indicated above, this is subject to the overriding power of the Court under Section 164 of the Act.
Under Article 21.2 of the articles of New Gold Inc. (the “Articles”),
and subject to the Act, the Registrant must indemnify a director, former director or alternate director of the Registrant and his or her
heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and the Registrant must,
after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of
that proceeding. Each director and alternate director is deemed to have contracted with the Registrant on the terms of the indemnity contained
in Article 21.2 of the Articles.
Subject to any restrictions in the Act, the Registrant may indemnify
any person.
The failure of a director, alternate director or officer of the Registrant
to comply with the Act or the Articles does not invalidate any indemnity to which he or she is entitled under Part 21 of the Articles.
For the purposes of the Articles, an “eligible penalty”
means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding. An “eligible
proceeding” means a legal proceeding or investigative action, whether current, threatened, pending or completed, in which a director,
former director or alternate director of the Registrant (an “eligible party”) or any of the heirs and legal personal representatives
of the eligible party, by reason of the eligible party being or having been a director or alternate director of the Registrant, (a) is
or may be joined as a party, or (b) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related
to, the proceeding. “Expenses” has the meaning set out in the Act.
Under the Articles, the Registrant may purchase and maintain insurance
for the benefit of any person (or his or her heirs or legal personal representatives) who:
| · | is or was a director, alternate director, officer, employee or agent of the Registrant; |
| · | is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was an
affiliate of the Registrant; |
| · | at the request of the Registrant, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership,
trust, joint venture or other unincorporated entity; or |
| · | at the request of the Registrant, holds or held a position equivalent to that of a director, alternate director or officer of a partnership,
trust, joint venture or other unincorporated entity; |
against any liability incurred by him or her as such director, alternate
director, officer, employee or agent or person who holds or held such equivalent position.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the “1933 Act”), 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 U.S. Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act and is therefore unenforceable.
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertaking
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
| |
(a) |
Concurrent with the filing of this Registration Statement on Form F-10, the Registrant has filed with the Commission a written irrevocable consent and power of attorney on Form F-X. |
| |
(b) |
Any change to the name or address of the agent for service of process of the Registrant shall be communicated promptly to the Commission by amendment to Form F-X referencing the file number of this Registration Statement. |
FORM F-10
EXHIBITS OF NEW GOLD INC.
EXHIBIT
NUMBER |
|
DESCRIPTION |
| 4.1 |
|
Annual information form of the Registrant dated February 21, 2024 for the year ended December 31, 2023 (incorporated by reference from Exhibit 1 to the Registrant’s Annual Report on Form 40-F for the fiscal year ended December 31, 2023 filed with the SEC on February 21, 2024 (File No. 001-31722) (the “Form 40-F”)). |
| |
|
|
| 4.2 |
|
Audited consolidated financial statements of the Registrant as of and for the years ended December 31, 2023 and 2022, together with the reports of the independent registered public accounting firm thereon and the notes thereto (incorporated by reference from Exhibit 2 to the Form 40-F). |
| |
|
|
| 4.3 |
|
Management’s discussion and analysis of the Registrant for the year ended December 31, 2023 (incorporated by reference from Exhibit 3 to the Form 40-F). |
| |
|
|
| 4.4 |
|
Unaudited condensed interim consolidated financial statements of the Registrant as at and for the three months ended March 31, 2024 and the notes thereto (incorporated by reference to Exhibit 99.1 to the Registrant’s Form 6-K filed with the SEC on April 30, 2024 (File No. 001-31722)). |
| |
|
|
| 4.5 |
|
Management’s discussion and analysis of financial position and results of operations of the Registrant for the three months ended March 31, 2024 (incorporated by reference to Exhibit 99.2 to the Registrant’s Form 6-K filed with the SEC on April 30, 2024 (File No. 001-31722)). |
| |
|
|
| 4.6 |
|
Management Information Circular of the Registrant, dated March 28, 2024 prepared in connection with the annual meeting of the shareholders of the Registrant to be held on May 14, 2024 (incorporated by reference from Exhibit 99.2 to the Registrant’s Report on Form 6-K filed with the SEC on April 4, 2024 (File No. 001-31722)). |
| |
|
|
| 5.1 |
|
Consent of Deloitte LLP. |
| |
|
|
| 5.2 |
|
Consent of M. Della Libera. |
| |
|
|
| 5.3 |
|
Consent of E. Lecomte. |
| |
|
|
| 5.4 |
|
Consent of A. Croal. |
| |
|
|
| 5.5 |
|
Consent of AMC Mining Consultants (Canada) Ltd. |
| |
|
|
| 5.6 |
|
Consent of K. Bocking. |
| |
|
|
| 5.7 |
|
Consent of E. Saunders. |
| |
|
|
| 5.8 |
|
Consent of A. Zerwer. |
| |
|
|
| 5.9 |
|
Consent of M. Taghimohammadi. |
| |
|
|
| 5.10 |
|
Consent of S. Yirdaw. |
| |
|
|
| 5.11 |
|
Consent of J. Taylor. |
| |
|
|
| 5.12 |
|
Consent of C. Gagnon. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, 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 Toronto, Province of Ontario, Canada, on May 13, 2024.
| |
NEW GOLD INC. |
| |
|
|
|
| |
By: |
/s/ Patrick Godin |
| |
|
Name: |
Patrick Godin |
| |
|
Title: |
President & Chief Executive Officer |
| |
|
|
|
| |
By: |
/s/ Keith Murphy |
| |
|
Name: |
Keith Murphy |
| |
|
Title: |
Executive Vice President & Chief Financial Officer |
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
of the undersigned officers, directors, and Authorized Representative in the United States of New Gold Inc. hereby constitutes and
appoints Patrick Godin, Keith Murphy and Sean Keating or any of them (with full power to each of them to act alone), his or her true and
lawful attorney-in-fact and agent, with full power of substitution, for him or her and on his or her behalf and in his or her name, place
and stead, in any and all capacities, to sign, execute and file any and all documents relating to this Registration Statement, including
any and all amendments, exhibits and supplements thereto, with any regulatory authority, granting unto the said attorneys, and each of
them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as he himself or she herself might or could do if personally present,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes,
may lawfully do or cause to be done.
This Power of Attorney may
be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated
on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Patrick Godin |
|
President & Chief Executive Officer and Director |
|
May 13, 2024 |
| Patrick Godin |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Keith Murphy |
|
Executive Vice President & Chief Financial Officer |
|
May 13, 2024 |
| Keith Murphy |
|
(Principal Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Ian Pearce |
|
Chair of the Board of Directors |
|
May 13, 2024 |
| Ian Pearce |
|
|
|
|
| |
|
|
|
|
| /s/ Geoff Chater |
|
Director |
|
May 13, 2024 |
| Geoff Chater |
|
|
|
|
| |
|
|
|
|
| /s/ Nicholas Chirekos |
|
Director |
|
May 13, 2024 |
| Nicholas Chirekos |
|
|
|
|
| |
|
|
|
|
| /s/ Gillian Davidson |
|
Director |
|
May 13, 2024 |
| Gillian Davidson |
|
|
|
|
| |
|
|
|
|
| /s/ Thomas J. McCulley |
|
Director |
|
May 13, 2024 |
| Thomas J. McCulley |
|
|
|
|
| |
|
|
|
|
| /s/ Margaret Mulligan |
|
Director |
|
May 13, 2024 |
| Margaret Mulligan |
|
|
|
|
| |
|
|
|
|
| /s/ Richard O’Brien |
|
Director |
|
May 13, 2024 |
| Richard O’Brien |
|
|
|
|
| |
|
|
|
|
| /s/ Marilyn Schonberner |
|
Director |
|
May 13, 2024 |
| Marilyn Schonberner |
|
|
|
|
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of
the Securities Act of 1933, as amended, the undersigned has signed this Registration Statement, solely in the capacity of the duly authorized
representative of New Gold Inc. in the United States, on May 13, 2024.
| |
PUGLISI & ASSOCIATES |
| |
|
|
|
| |
By: |
/s/ Donald J. Puglisi |
| |
|
Name: |
Donald J. Puglisi |
| |
|
Title: |
Managing Director |
EXHIBIT 5.1
Consent
of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement
on Form F-10 of our reports dated February 13, 2024 relating to the financial statements of New Gold Inc. (the “Company”)
and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 40-F
of the Company for the year ended December 31, 2023.
/s/ Deloitte LLP
Chartered Professional Accountants
Licensed Public Accountants
Toronto, Canada
May 13, 2024
EXHIBIT 5.2
CONSENT OF MICHELE DELLA LIBERA
United States Securities and
Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day of May, 2024
Yours truly,
| |
/s/ Michele Della Libera |
|
| Name: |
Michele Della Libera
P.Geo., member of APGO and EGBC |
|
EXHIBIT 5.3
CONSENT OF ERIC LECOMTE
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day of May, 2024
Yours truly,
| |
/s/ Eric Lecomte |
|
| Name: |
Eric Lecomte, P.Eng. |
|
| Title: |
Senior Mining Engineer, |
|
| |
InnovExplo Mining Consultants |
|
EXHIBIT 5.4
CONSENT OF ANDREW CROAL
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th
day of May, 2024
Yours truly,
| |
/s/ Andrew Croal |
|
| Name: |
Andrew Croal, P.Eng. |
|
EXHIBIT 5.5
CONSENT OF AMC
MINING CONSULTANTS (CANADA) LTD.
May 13, 2024
U.S. Securities and Exchange Commission
Dear Sirs and Mesdames:
We hereby consent to being named in each case where
used or incorporated by reference in the Registration Statement on Form F-10 of New Gold Inc. (the “Registration Statement”)
and to the use and reference to the report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada”
with an effective date of March 28, 2022 (the “Technical Report”) contained or incorporated by reference in the Registration
Statement.
We are the former employer of each of Francis J.
McCann and Dinara Nussipakynova, each of whom is named as a contributing author of the Technical Report. We employed each of them at the
date of the signing of the Technical Report.
Yours very truly,
AMC MINING CONSULTANTS (CANADA) LTD.
| by:
|
/s/ Gene
Tucker |
|
| |
Name:
Gene Tucker |
|
| |
Title:
Regional Manager - Canada |
|
EXHIBIT 5.6
CONSENT OF KENNETH BOCKING
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th
day of May, 2024
Yours truly,
| |
/s/ Kenneth Bocking |
|
| Name: |
Kenneth Bocking, P.Eng. |
|
| Title: |
Principal, |
|
| |
WSP Global Inc. (as successor of |
|
| |
Golder Associates Ltd.) |
|
EXHIBIT 5.7
CONSENT OF EDWARD SAUNDERS
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day of May, 2024
Yours truly,
| |
/s/ Edward Saunders |
|
| Name: |
Edward Saunders, P.Eng. |
|
EXHIBIT 5.8
CONSENT OF ANDRE ZERWER
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th
day of May, 2024
Yours truly,
| |
/s/ Andre Zerwer |
|
| Name: |
Andre Zerwer, P.Eng. |
|
| Title: |
Principal Geotechnical Engineer, |
|
| |
BGC Engineering Inc. |
|
EXHIBIT 5.9
CONSENT OF MOHAMMAD TAGHIMOHAMMADI
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day
of May, 2024
Yours truly,
| |
/s/ Mohammad Taghimohammadi |
|
| Name: |
Mohammad Taghimohammadi, P.Eng. |
|
| Title: |
Mill Manager, |
|
| |
New Gold Inc. |
|
EXHIBIT 5.10
CONSENT OF SITOTAW YIRDAW
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day of May, 2024
Yours truly,
| |
/s/ Sitotaw Yirdaw |
|
| Name: |
Sitotaw Yirdaw, Ph.D, P.Eng. |
|
EXHIBIT 5.11
CONSENT OF JUSTIN TAYLOR
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day of May, 2024
Yours truly,
| |
/s/ Justin Taylor |
|
| Name: |
Justin Taylor, P.Eng. |
|
| Title: |
President, Halyard Inc. |
|
EXHIBIT 5.12
CONSENT OF CHARLES GAGNON
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada” with an effective date of March 28,
2022, and the information derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference
in the Registration Statement on Form F-10 of New Gold Inc.
Dated this 13th day of May, 2024
Yours truly,
| |
/s/ Charles Gagnon |
|
| Name: |
Charles Gagnon, P.Eng. |
|
| Title: |
Principal Ventilation Engineer,
CGMexpert |
|
EXHIBIT 5.13
CONSENT OF SLR
CONSULTING (CANADA) LTD.
May 13, 2024
U.S. Securities and Exchange Commission
Dear Sirs and Mesdames:
We, as successor to Roscoe Postle Associates Inc.,
hereby consent to being named in each case where used or incorporated by reference in the Registration Statement on Form F-10 of
New Gold Inc. (the “Registration Statement”) and to the use and reference to the report entitled “Technical Report on
the New Afton Mine, British Columbia, Canada” dated February 28, 2020 (the “Technical Report”) contained or incorporated
by reference in the Registration Statement.
We are the former employer of each of David
Rennie, Norman Lecuyer, and Holger Krutzelmann, each of whom is named as a contributing author of the Technical Report. We employed
each of them at the date of the signing of the Technical Report.
Yours very truly,
| SLR CONSULTING (CANADA) LTD. |
|
| |
|
|
| by: |
/s/ Jason J. Cox |
|
| |
Name: Jason J. Cox, P.Eng. |
|
| |
Title: Global Technical Director |
|
EXHIBIT 5.14
CONSENT OF LUIS VASQUEZ
United States Securities and Exchange Commission
Ladies and Gentlemen:
The undersigned hereby consents to the use of their
report entitled “Technical Report on the New Afton Mine, British Columbia, Canada” dated February 28, 2020, and the information
derived therefrom, as well as the reference to their name, in each case where used or incorporated by reference in the Registration Statement
on Form F-10 of New Gold Inc.
Dated this 13th
day of May, 2024
| |
/s/ Luis Vasquez |
|
| Name: |
Luis Vasquez, M.Sc., P.Eng. |
|
| Title: |
Senior Hydrotechnical Engineer, |
|
| |
SLR Consulting (Canada) Ltd. |
|
EXHIBIT 5.15
CONSENT OF VINCENT NADEAU-BENOIT
United States Securities and Exchange Commission
Ladies and Gentlemen:
I, Vincent Nadeau-Benoit, Professional Geoscientist
(P.Geo.) and member of the Association of L’Ordre des Géologues du Québec (OGQ), Association of Professional Engineers
and Geoscientists of British Columbia (EGBC) and Association of Professional Geoscientists of Ontario (APGO), hereby consent to the use
of and reference to my name, and the inclusion in the Registration Statement on Form F-10 of New Gold Inc. of the information reviewed
and approved by me relating to the New Afton Mine and Rainy River Mine Mineral Resources that is of a scientific or technical nature contained
therein.
Dated this 13th day of May, 2024
| |
/s/ Vincent Nadeau-Benoit |
|
| Name: |
Vincent Nadeau-Benoit, P.Geo.,
member of OGQ, EGBC, APGO |
|
EXHIBIT 5.16
CONSENT OF ALEXANDER ALOUSIS
United States Securities and Exchange Commission
Ladies and Gentlemen:
I, Alexander Alousis, Professional Engineer (P.Eng.)
and member of the Association of the Professional Engineers of Ontario (PEO), hereby consent to the use of and reference to my name, and
the inclusion in the Registration Statement on Form F-10 of New Gold Inc. of the information reviewed and approved by me relating
to Mineral Reserves as it relates to the Rainy River Mine Underground that is of a scientific or technical nature contained therein.
Dated this 13th day of May, 2024
| |
/s/ Alexander Alousis |
|
| Name: |
Alexander Alousis, P.Eng.,
member of PEO |
|
EXHIBIT 5.17
CONSENT OF JOSHUA PARSONS
United States Securities and Exchange Commission
Ladies and Gentlemen:
I, Joshua Parsons, Professional Engineer (P.Eng.)
and member of the Association of the Engineers and Geoscientists of British Columbia (EGBC), hereby consent to the use of and reference
to my name, and the inclusion in the Registration Statement on Form F-10 of New Gold Inc. of the information reviewed and approved
by me relating to Mineral Reserves and Mineral Resources as it relates to the New Afton Mine that is of a scientific or technical nature
contained therein.
Dated this 13th day of May, 2024
| |
/s/ Joshua Parsons |
|
| Name: |
Joshua
Parsons, P.Eng.,
member of EGBC |
|
EXHIBIT 5.18
CONSENT OF JASON CHIASSON
United States Securities and Exchange Commission
Ladies and Gentlemen:
I, Jason Chiasson, Professional Engineer (P.Eng.)
and a member of the Association of Professional Engineers of Ontario (PEO), hereby consent to the use of and reference to my name, and
the inclusion in the Registration Statement on Form F-10 of New Gold Inc. of the information reviewed and approved by me relating
to Mineral Reserves as it relates to the Rainy River Mine Open Pit that is of a scientific or technical nature contained therein.
Dated this 13th day of May, 2024
| |
/s/ Jason Chiasson |
|
| Name: |
Jason
Chiasson, P.Eng.,
member of PEO |
|
EXHIBIT 5.19
CONSENT OF YOHANN BOUCHARD
United States Securities and Exchange Commission
Ladies and Gentlemen:
I, Yohann Bouchard, Professional Engineer (P.Eng.)
and a member of the Association of Professional Engineers Ontario (PEO), hereby consent to the use of, and reference to, my name, and
the inclusion in the Registration Statement on Form F-10 of New Gold Inc. of the information reviewed and approved by me that is
of a scientific or technical nature contained therein, other than that which relates to Mineral Reserves and Mineral Resources.
Dated this 13th day of May, 2024
| |
/s/ Yohann Bouchard |
|
| Name: |
Yohann
Bouchard, P.Eng.,
member of PEO |
|
Exhibit 7.1
New
Gold Inc.,
as Issuer
AND
[ ]
as Trustee
__________________________________
Indenture
Dated as of [ ]
__________________________________
New Gold Inc.
Reconciliation and tie between Trust Indenture
Act
of 1939 and Indenture, dated as of [ ]
Trust
Indenture
Act Section |
|
Indenture
Section |
|
|
|
| § 310(a)(1) |
|
607 |
| (a)(2) |
|
607 |
| (b) |
|
608 |
| § 312(b) |
|
701 |
| (c) |
|
701 |
| § 313(a) |
|
702 |
| (b)(1) |
|
702 |
| (b)(2) |
|
702 |
| (c) |
|
702 |
| (d) |
|
702 |
| § 314(a) |
|
703 |
| (a)(4) |
|
904 |
| (c)(1) |
|
102 |
| (c)(2) |
|
102 |
| (e) |
|
102 |
| § 315(b) |
|
601 |
| § 316(a)(last sentence) |
|
101 (“Outstanding”) |
| (a)(1)(A) |
|
502, 512 |
| (a)(1)(B) |
|
513 |
| (b) |
|
508 |
| (c) |
|
104(e) |
| § 317(a)(1) |
|
503 |
| (a)(2) |
|
504 |
| (b) |
|
903 |
| § 318(a) |
|
111 |
TABLE OF CONTENTS1
|
|
Page |
| |
|
|
| PARTIES |
|
1 |
| RECITALS |
|
1 |
| ARTICLE One DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION |
|
1 |
| Section 101. Definitions |
|
1 |
| “Act” |
|
1 |
| “Affiliate” |
|
2 |
| “Authenticating
Agent” |
|
2 |
| “Authorized Newspaper” |
|
2 |
| “Bankruptcy Law” |
|
2 |
| “Bankruptcy Order” |
|
2 |
| “Bearer Security” |
|
2 |
| “Board of Directors” |
|
2 |
| “Board Resolution” |
|
2 |
| “Business Day” |
|
2 |
| “calculation period” |
|
2 |
| “Canadian GAAP” |
|
2 |
| “Clearstream” |
|
3 |
| “Commission” |
|
3 |
| “Common Depositary” |
|
3 |
| “Company” |
|
3 |
| “Company Request”
or “Company Order” |
|
3 |
| “Component Currency” |
|
3 |
| “Conversion Date” |
|
3 |
| “Conversion Event” |
|
3 |
| “Corporate Trust
Office” |
|
3 |
| “corporation” |
|
3 |
| “coupon” |
|
3 |
| “covenant defeasance” |
|
3 |
| “Currency” |
|
3 |
| “Custodian” |
|
3 |
| “Default” |
|
3 |
| “Defaulted Interest” |
|
3 |
| “defeasance” |
|
3 |
| “Depositary” |
|
4 |
| “Dollar” or
“$” |
|
4 |
| “Dollar Equivalent
of the Currency Unit” |
|
4 |
| “Dollar Equivalent
of the Foreign Currency” |
|
4 |
| “Election Date” |
|
4 |
1 This table
of contents shall not, for any purpose, be deemed to be a part of the Indenture.
| “Euro” |
|
4 |
| “Euroclear” |
|
4 |
| “Event of Default” |
|
4 |
| “Exchange Date” |
|
4 |
| “Exchange Rate Agent” |
|
4 |
| “Exchange Rate Officer’s
Certificate” |
|
4 |
| “Extension Notice” |
|
4 |
| “Extension Period” |
|
4 |
| “Federal Bankruptcy
Code” |
|
4 |
| “Final Maturity” |
|
4 |
| “First Currency” |
|
4 |
| “Foreign Currency” |
|
4 |
| “Governmental Authority” |
|
5 |
| “Government Obligations” |
|
5 |
| “Holder” |
|
5 |
| “Indebtedness” |
|
5 |
| “Indenture” |
|
5 |
| “Indexed Security” |
|
5 |
| “interest” |
|
5 |
| “Interest Payment
Date” |
|
5 |
| “Judgment Currency” |
|
5 |
| “Lien” |
|
5 |
| “mandatory sinking
fund payment” |
|
6 |
| “Market Exchange
Rate” |
|
6 |
| “Maturity” |
|
6 |
| “Officers’
Certificate” |
|
6 |
| “Opinion of Counsel” |
|
6 |
| “Optional Reset
Date” |
|
6 |
| “optional sinking
fund payment” |
|
6 |
| “Original Issue
Discount Security” |
|
6 |
| “Original Stated
Maturity” |
|
6 |
| “Outstanding” |
|
6 |
| “Paying Agent” |
|
7 |
| “Person” |
|
7 |
| “Place
of Payment” |
|
7 |
| “Predecessor
Security” |
|
7 |
| “rate(s) of
exchange” |
|
7 |
| “Redemption
Date” |
|
8 |
| “Redemption
Price” |
|
8 |
| “Registered
Security” |
|
8 |
| “Regular
Record Date” |
|
8 |
| “Repayment
Date” |
|
8 |
| “Repayment
Price” |
|
8 |
| “Required
Currency” |
|
8 |
| “Reset
Notice” |
|
8 |
| “Responsible
Officer” |
|
8 |
| “Securities” |
|
8 |
| “Security
Register” |
|
8 |
| “Special
Record Date” |
|
8 |
| “Specified
Amount” |
|
8 |
| “Stated
Maturity” |
|
8 |
| “Subsequent
Interest Period” |
|
8 |
| “Subsidiary” |
|
9 |
| “Trust
Indenture Act” or “TIA” |
|
9 |
| “Trustee” |
|
9 |
| “United
States” |
|
9 |
| “United
States person” |
|
9 |
| “Valuation
Date” |
|
9 |
| “Voting
Shares” |
|
9 |
| “Yield to Maturity” |
|
9 |
| Section 102. Compliance
Certificates and Opinions |
|
9 |
| Section 103. Form of Documents
Delivered to Trustee |
|
10 |
| Section 104. Acts
of Holders |
|
11 |
| Section 105. Notices, etc. to
Trustee and Company |
|
12 |
| Section 106. Notice to Holders; Waiver |
|
12 |
| Section 107. Effect of Headings and
Table of Contents |
|
13 |
| Section 108. Successors
and Assigns |
|
13 |
| Section 109. Separability
Clause |
|
13 |
| Section 110. Benefits of Indenture |
|
13 |
| Section 111. Governing Law |
|
13 |
| Section 112. Legal
Holidays |
|
13 |
| Section 113. Agent for Service; Submission
to Jurisdiction; Waiver of Immunities |
|
14 |
| Section 114. Conversion of Currency |
|
14 |
| Section 115. Currency
Equivalent |
|
15 |
| Section 116. No Recourse Against Others |
|
15 |
| Section 117. Multiple Originals |
|
15 |
| Section 118. Conflict with Trust Indenture
Act |
|
15 |
| |
|
|
| ARTICLE TWO SECURITY FORMS |
|
16 |
| Section 201. Forms
Generally |
|
16 |
| Section 202. Form of
Trustee’s Certificate of Authentication |
|
16 |
| Section 203. Securities Issuable in
Global Form |
|
17 |
| |
|
|
| ARTICLE THREE THE SECURITIES |
|
17 |
| Section 301. Amount Unlimited; Issuable
in Series |
|
17 |
| Section 302. Denominations |
|
21 |
| Section 303. Execution, Authentication,
Delivery and Dating |
|
21 |
| Section 304. Temporary Securities |
|
23 |
| Section 305. Registration, Registration
of Transfer and Exchange |
|
24 |
| Section 306. Mutilated, Destroyed,
Lost and Stolen Securities |
|
27 |
| Section 307. Payment of Principal and
Interest; Interest Rights Preserved; Optional Interest Reset |
|
28 |
| Section 308. Optional Extension of
Stated Maturity |
|
30 |
| Section 309. Persons
Deemed Owners |
|
31 |
| Section 310. Cancellation |
|
31 |
| Section 311. Computation
of Interest |
|
32 |
| Section 312. Currency
and Manner of Payments in Respect of Securities |
|
32 |
| Section 313. Appointment
and Resignation of Successor Exchange Rate Agent |
|
34 |
| |
|
|
| ARTICLE FOUR SATISFACTION AND DISCHARGE |
|
35 |
| Section 401. Satisfaction
and Discharge of Indenture |
|
35 |
| Section 402. Application
of Trust Money |
|
36 |
| |
|
|
| ARTICLE Five REMEDIES |
|
36 |
| Section 501. Events
of Default |
|
36 |
| Section 502. Acceleration
of Maturity; Rescission and Annulment |
|
38 |
| Section 503. Collection
of Indebtedness and Suits for Enforcement by Trustee |
|
39 |
| Section 504. Trustee May File
Proofs of Claim |
|
39 |
| Section 505. Trustee May Enforce
Claims Without Possession of Securities |
|
40 |
| Section 506. Application of Money Collected |
|
40 |
| Section 507. Limitation
on Suits |
|
41 |
| Section 508. Unconditional
Right of Holders to Receive Principal, Premium and Interest |
|
41 |
| Section 509. Restoration of Rights
and Remedies |
|
42 |
| Section 510. Rights and Remedies Cumulative |
|
42 |
| Section 511. Delay or Omission Not
Waiver |
|
42 |
| Section 512. Control
by Holders |
|
42 |
| Section 513. Waiver of Past Defaults |
|
43 |
| Section 514. Waiver of Stay or Extension
Laws |
|
43 |
| |
|
|
| ARTICLE SIX THE TRUSTEE |
|
44 |
| Section 601. Notice of Defaults |
|
44 |
| Section 602. Certain
Rights of Trustee |
|
44 |
| Section 603. Trustee
Not Responsible for Recitals or Issuance of Securities |
|
45 |
| Section 604. May Hold Securities |
|
46 |
| Section 605. Money Held in Trust |
|
46 |
| Section 606. Compensation and Reimbursement |
|
46 |
| Section 607. Corporate
Trustee Required; Eligibility; Conflicting Interests |
|
47 |
| Section 608. Resignation and Removal;
Appointment of Successor |
|
47 |
| Section 609. Acceptance
of Appointment by Successor |
|
49 |
| Section 610. Merger, Conversion, Consolidation
or Succession to Business |
|
50 |
| Section 611. Appointment
of Authenticating Agent |
|
50 |
| |
|
|
| ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY |
|
52 |
| Section 701. Disclosure
of Names and Addresses of Holders |
|
52 |
| Section 702. Reports
by Trustee |
|
52 |
| Section 703. Reports by the Company |
|
52 |
| Section 704. The Company to Furnish
Trustee Names and Addresses of Holders |
|
53 |
| |
|
|
| ARTICLE Eight SUPPLEMENTAL INDENTURES |
|
54 |
| Section 801. Supplemental Indentures
Without Consent of Holders |
|
54 |
| Section 802. Supplemental Indentures
with Consent of Holders |
|
55 |
| Section 803. Execution of Supplemental
Indentures |
|
56 |
| Section 804. Effect
of Supplemental Indentures |
|
56 |
| Section 805. Conformity
with Trust Indenture Act |
|
56 |
|
Section 806. Reference
in Securities to Supplemental Indentures
|
|
57 |
| Section 807. Notice of Supplemental
Indentures |
|
57 |
| |
|
|
| ARTICLE Nine COVENANTS |
|
57 |
| Section 901. Payment
of Principal, Premium, if any, and Interest |
|
57 |
| Section 902. Maintenance
of Office or Agency |
|
57 |
| Section 903. Money
for Securities Payments to Be Held in Trust |
|
59 |
| Section 904. Statement
as to Compliance |
|
60 |
| Section 905. Payment
of Taxes and Other Claims |
|
60 |
| Section 906. Maintenance
of Properties |
|
61 |
| Section 907. Corporate
Existence |
|
61 |
| Section 908. Waiver
of Certain Covenants |
|
61 |
| |
|
|
| ARTICLE Ten REDEMPTION OF SECURITIES |
|
62 |
| Section 1001. Applicability
of Article |
|
62 |
| Section 1002. Election
to Redeem; Notice to Trustee |
|
62 |
| Section 1003. Selection
by Trustee of Securities to Be Redeemed |
|
62 |
| Section 1004. Notice
of Redemption |
|
62 |
| Section 1005. Deposit
of Redemption Price |
|
63 |
| Section 1006. Securities
Payable on Redemption Date |
|
64 |
| Section 1007. Securities Redeemed in
Part |
|
65 |
| |
|
|
| ARTICLE Eleven SINKING FUNDS |
|
65 |
| Section 1101. Applicability
of Article |
|
65 |
| Section 1102. Satisfaction
of Sinking Fund Payments with Securities |
|
65 |
| Section 1103. Redemption
of Securities for Sinking Fund |
|
66 |
| |
|
|
| ARTICLE Twelve REPAYMENT AT OPTION
OF HOLDERS |
|
67 |
| Section 1201. Applicability
of Article |
|
67 |
| Section 1202. Repayment
of Securities |
|
67 |
| Section 1203. Exercise
of Option |
|
67 |
| Section 1204. When
Securities Presented for Repayment Become Due and Payable |
|
68 |
| Section 1205. Securities
Repaid in Part |
|
69 |
| ARTICLE Thirteen DEFEASANCE AND
COVENANT DEFEASANCE |
|
69 |
| Section 1301. Option
to Effect Defeasance or Covenant Defeasance |
|
69 |
| Section 1302. Defeasance
and Discharge |
|
69 |
| Section 1303. Covenant
Defeasance |
|
70 |
| Section 1304. Conditions
to Defeasance or Covenant Defeasance |
|
70 |
| Section 1305. Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
|
72 |
| Section 1306. Reinstatement |
|
73 |
| |
|
|
| ARTICLE Fourteen MEETINGS OF HOLDERS
OF SECURITIES |
|
74 |
| Section 1401. Purposes
for Which Meetings May Be Called |
|
74 |
| Section 1402. Call,
Notice and Place of Meetings |
|
74 |
| Section 1403. Persons
Entitled to Vote at Meetings |
|
74 |
| Section 1404. Quorum;
Action |
|
74 |
| Section 1405. Determination
of Voting Rights; Conduct and Adjournment of Meetings |
|
76 |
| Section 1406. Counting
Votes and Recording Action of Meetings |
|
77 |
| Section 1407. Waiver
of Jury Trial |
|
77 |
| |
|
|
| TESTIMONIUM |
|
|
| |
|
|
| SIGNATURES |
|
|
| |
|
|
| FORM OF
SECURITY |
|
EXHIBIT A |
| |
|
|
| FORMS
OF CERTIFICATION |
|
EXHIBIT B |
INDENTURE, dated as of [ ], between New Gold Inc., a corporation duly organized and existing under the laws of British Columbia (herein called the “Company”), having
its principal office at 181 Bay Street, Suite 3320, Toronto, Ontario, Canada, M5J 2T3, 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 unsecured debentures, notes or other evidences of indebtedness
(herein called the “Securities”), which may be convertible into or exchangeable for any securities of any Person (including
the Company) to be issued 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) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in TIA Section 311,
shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture Act;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with Canadian GAAP; and
(4) 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.
Certain terms, used principally in Article Three,
are defined in that Article.
“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.
“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” means the Federal Bankruptcy
Code, Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), Winding-Up & Restructuring
Act (Canada), or any other Canadian federal or provincial law or the law of any other jurisdiction relating to bankruptcy, insolvency,
winding-up, liquidation, dissolution, reorganization or relief of debtors or any similar law now or hereafter in effect for the relief
from, or otherwise affecting, creditors.
“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 substantial
part of a debtor’s property, or providing for the staying, arrangement, adjustment or compromise of indebtedness or other relief
of a debtor.
“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, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting principles used in the Company’s annual
financial statements contained in the Company’s annual report delivered to its shareholders in respect of the fiscal year immediately
prior to the date of such computation, including International Financial Reporting Standards as issued by the International Accounting
Standards Board.
“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 Securities Exchange Act of 1934, 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 any two authorized officers 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).
“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” means any receiver, interim
receiver, receiver and manager, trustee, assignee, liquidator, sequestrator, monitor, custodian or similar official or agent or any other
Person with like powers.
“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, The Depository Trust Company, or any successor thereto, or any other Person designated pursuant to Section 301
with respect to the Securities of such 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.,
and any successor thereto.
“Event of Default” has the meaning specified
in Section 501.
“Exchange Date” has the meaning specified
in Section 304.
“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 313.
“Exchange Rate Officer’s 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 any authorized officer 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.
“Governmental Authority” means any nation
or government, any state, province, territory or other political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
“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 depositary 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.
“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, shall be deemed to mean 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 either 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, England 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 any two authorized officers 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.
“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.
“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 bona fide purchaser 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 by
the Company as set forth in an Exchange Rate Officer’s 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 pledgee’s 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.
“Person” means an individual, partnership,
limited liability company, joint stock company, corporation, business trust, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
“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 Sections 301 and 902.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed,
lost or stolen coupon appertains, as the case may be.
“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, means the price at which it is to be redeemed pursuant to this Indenture.
“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.
“Repayment Price” means, when used with
respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid 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).
“Subsequent Interest Period” has the
meaning specified in Section 307.
“Subsidiary” of any person means, at
the date of determination, any corporation or other person of which Voting Shares or other interests carrying more than 50% of the voting
rights attached to all outstanding Voting Shares or other interests are owned, directly or indirectly, by or for such person or one or
more Subsidiaries thereof.
“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.
“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.
“United States person” means, unless
otherwise specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate or trust
the income of which is subject to United States federal income taxation regardless of its source.
“Valuation Date” has the meaning specified
in Section 312(c).
“Voting Shares” means shares of any
class of a corporation having under all circumstances the right to vote for the election of the directors of such corporation, provided
that, for the purpose of the definition, shares which only carry the right to vote conditionally on the happening of an event shall not
be considered Voting Shares whether or not such event shall have happened.
“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.
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 such officer or counsel, as the case may be, 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.
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.
(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, , Attention , 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, addressed to it at 181 Bay Street, Suite 3320, Toronto, Ontario, Canada, M5J 2T3, Attention: Corporate Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
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 at the expense of the Company, 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.
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 at the expense of the Company 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), 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, Repayment 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, Repayment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
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, and acknowledges that it has irrevocably designated and appointed, 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 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
and written notice of said service to the Company (mailed or delivered to its Corporate Secretary at its principal office specified in
the first paragraph of this Indenture and in the manner specified in Section 105 hereof), 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 under the Securities of any series or this Indenture
in any other currency (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 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 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.
(c) The
obligations contained in Subsections (a)(ii) and (b) of this Section 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 daily average exchange 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 daily average exchange rate as may be agreed upon by each of the parties to this Indenture) and includes any premiums and costs
of exchange payable.
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 which is required to purchase such amount in the First Currency at the Bank of Canada daily
average exchange rate as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada daily average exchange
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.
A director, officer, employee or shareholder, as
such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and
release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities.
Section 117. Multiple
Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 118. 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 shall be in substantially the forms as shall be established by
or pursuant to a Board Resolution of the Company 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 Company. 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.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee’s certificate of authentication
on all Securities shall be in substantially the form set forth in this Article.
The definitive Securities and coupons, if any, may
be produced in any manner, all as determined by the officers of the Company executing such Securities, as evidenced by their execution
of such Securities or coupons. A Security may be in substantially the form attached as Exhibit A hereto, or a Security may be in
any form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate
or supplemental indenture pursuant to Section 301.
Section 202. Form of
Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s
certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
as Trustee
Section 203. Securities
Issuable in Global Form.
If Securities of or within a series are issuable
in global form, as contemplated by Section 301, then, notwithstanding clause (8) of Section 301, 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 such manner and upon instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the Company Order. 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.
The provisions of the last sentence of Section 303
shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the
Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence of Section 303.
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 Person or Persons specified therein.
Notwithstanding the provisions of Section 309
and except as provided in the preceding paragraph, 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.
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.
Except as otherwise provided herein, and except to the extent prescribed by law, each series of Securities shall be direct, unconditional
and unsecured obligations of the Company and shall rank pari passu and ratably without preference among themselves and pari passu with
all other unsecured and unsubordinated obligations of the Company. There shall be established in one or more Board Resolutions of the
Company or pursuant to authority granted by one or more Board Resolutions of the Company and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officers’ Certificate of the Company, or established 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 (except
for the matters set forth in clauses (1), (2) and (16) below), 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):
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);
(2) 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 Section 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 the Securities of
the series is payable;
(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,
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 (and premium, if any) and interest, if any, 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;
and the extent to which, or the manner in which, any interest payment due on a global Security of that series on an Interest Payment
Date will be paid (if different than for other Securities of such series);
(6) the
period or periods within which, the price or prices at which, the Currency (if other than Dollars) 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 or analogous provision
or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency (if other than
Dollars) 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 $2,000 and integral multiples of $1,000, 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;
(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 Currency in which payment of the principal of (or premium, if any) or interest, if any, 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) whether
the amount of payments of principal of (or premium, if any) or interest, if any, 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) whether
the principal of (or premium, if any) or interest, if any, 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 and
the Currency in which such Securities are to be so payable, 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 or covenants (including any deletions from, modifications of or
additions to Section 908) of the Company with respect to Securities of the series, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth herein;
(18) 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 Bearer Securities, 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 any initial depository therefor if other than The Depository Trust Company;
(19) 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;
(20) 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;
(21) 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;
(22) if
the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated
and delivered;
(23) 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) if
payment of the Securities of the series will be guaranteed by any other Person;
(25) the
extent and manner, if any, in which payment on or in respect of the Securities of the series will be senior or will be subordinated to
the prior payment of other liabilities and obligations of the Company; and
(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 which need not be consistent with the provisions of this Indenture).
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 any two of its authorized officers. 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.
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; and 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 any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s
interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed
to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security.
Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and cancelled. 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 of the Company
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 issued by the Company 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 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.
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 Trustee’s 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 be
entitled 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 for herein 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 be
entitled 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 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. Such
temporary Securities may be in global form.
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; and 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 Company’s 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); and 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.
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 and of the third paragraph of Section 303 of this Indenture 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 (or premium, if any) or interest, if any, 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.
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 Securities issued by the Company (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, except as otherwise provided in Section 902, 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.
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
owner’s 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 Company’s 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 Securities Exchange
Act of 1934, as amended, 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 Company’s 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 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.
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, 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 bona fide purchaser, 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; and provided, further, that all Bearer Securities shall be delivered and received in person.
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, except as otherwise provided in Section 902, 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.
Upon the issuance of any replacement Security under
this Section, 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 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, as amended or supplemented
pursuant to Section 301 of this Indenture with respect to particular 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 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 Company’s 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.
If so provided pursuant to Section 301 with
respect to the Securities of any series, every permanent global Security of such series will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream with respect to that portion of such permanent global Security
held for its account by the Common Depositary, for the purpose of permitting each of Euroclear and Clearstream to credit the interest,
if any, received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof.
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
Section 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).
(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 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 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.
(c) Subject
to the foregoing provisions of this Section 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 Trustee’s 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 Section 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.
The Depositary for Securities may be treated by
the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such global Security for all purposes whatsoever.
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.
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 a Holder, with respect to 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, 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.
(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 Officer’s 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.
“Election Date” shall mean
the date for any series of Registered Securities as specified pursuant to clause (14) of Section 301 by which the written election
referred to in paragraph (b) above may be made.
(i) Notwithstanding
the foregoing, the Trustee shall not be obligated to convert any currency whose conversion the Trustee, in its sole discretion, deems
impracticable.
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 Foreign
Currency or (ii) may be payable in a Foreign Currency, 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.
(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 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 the Securities of any particular series that are originally issued by the Company on the same date and 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 Outstanding Securities and any related coupons to receive, solely from the trust fund described in subclause (B) of
clause (1) of this 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 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;
(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, 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; 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, when the same becomes due by the terms of the Securities of that series; 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),
and continuance of such default or breach for a period of 90 days after there has been given, 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 principal amount of all Outstanding Securities
affected thereby, 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
(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 commencement of any proceeding or application seeking the making of a Bankruptcy Order against
it;
(iii) consents
to the appointment of a Custodian of it or for any substantial part of its property;
(iv) makes
a general assignment for the benefit of its creditors or files a proposal or notice of intention to make a proposal or other scheme of
arrangement involving the rescheduling, reorganizing or compromise of its Indebtedness;
(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) any
other Event of Default provided with respect to Securities of that series.
Section 502. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default described in 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 principal amount of the Outstanding Securities of that series may, subject to any subordination provisions
thereof, declare the principal amount (or, if the 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 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.
At any time after a declaration of acceleration
with respect to 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 by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount
of the Outstanding Securities of such series (or of all series, as the case may be), by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences 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 (or of all series, as the case may be) and any related coupons,
(B) all
unpaid principal of (and premium, if any, on) all Outstanding Securities of that series (or of all series, as the case may be) 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 (or of all series, as the case may be), other than the non-payment of amounts
of principal of (or premium, if any, on) or interest on Securities of that series (or of all series, as the case may be) 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 or any related coupon when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
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.
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 (or of all series, as the case may be) 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 (or of all series, as the case may be) 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 a proof of 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 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:
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 principal amount of the Outstanding Securities of all series affected by such Event of Default (determined
as provided in Section 502 and, if more than one series of Securities, as one class), 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 all series affected by such Event of Default (determined as provided in
Section 502 and, if more than one series of Securities, as one class);
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Outstanding Securities of such affected series, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Outstanding Securities of such affected series. For purposes of clarity, it is hereby understood and
agreed that an Event of Default described in clause (1), (2) or (3) of Section 501 with respect to the Securities of any
series shall, for purposes of this Section 507, be deemed to affect only such series of Securities.
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
hereof, 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.
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 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 all series affected by an Event of Default (determined as provided in Section 502 and, if
more than one series of Securities, as one class) 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 affected 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 of such affected series not joining therein.
For purposes of clarity, it is hereby understood and agreed that an
Event of Default described in clause (1), (2) or (3) of Section 501 with respect to the Securities of any series shall,
for purposes of this Section 512, be deemed to affect only such series of Securities.
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 all series with respect to which a Default shall have occurred
and be continuing (as one class if more than one series) may on behalf of the Holders of all the Outstanding Securities of such affected
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 Nine 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. For purposes
of clarity, it is hereby understood and agreed that an Event of Default described in clause (1), (2) or (3) of Section 501
with respect to the Securities of any series shall, for purposes of this Section 513, be deemed to affect only such series of Securities.
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.
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) 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 conclusively 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, conclusively rely upon an Officers’ Certificate;
(4) the
Trustee may consult with counsel and the written 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 security or indemnity reasonably satisfactory to the Trustee 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;
(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;
(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;
(9) the
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this Indenture;
(10) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder on behalf of the Trustee; and
(11) the
Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any
person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously
delivered and not superseded
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 Trustee’s 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 written 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 and its officers, directs, employees and agents for, and to hold it harmless against, any loss, liability or expense
incurred without gross 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.
The obligations of the Company under this Section 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 Law.
The provisions of this Section 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, 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, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
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 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,
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 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.
(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 (a) or (b) of this Section,
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.
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,
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 Trustee’s 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, 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, it shall resign immediately in the manner and with the effect specified in this Section.
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, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
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, 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.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this Section, 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, the Securities of such series may have endorsed thereon, in addition to the Trustee’s 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
| By: | |
| | | as Authenticating
Agent |
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.
(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, (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 or furnish to the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934;
(2) file
with the Trustee, within 15 days after the Company files the same 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 Securities
Exchange Act of 1934, 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 financial 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 financial 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.
provided,
however, that if the Company is no longer subject to the periodic reporting requirements of the Exchange Act, the Company
will not be required to comply with Section 302 or Section 404 of the Sarbanes- Oxley Act of 2002, or related Items 307 and
308 of Regulation S-K promulgated by the SEC, or Item 10(e) of Regulation S-K (with respect to any non- GAAP financial measures
contained therein).
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 or furnish such reports to the Commission if the Commission does not
permit such reports to be so filed or furnished; 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 as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 704. The
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee:
(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
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
(2) 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
(3) 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
(4) 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
(5) to
secure the Securities; or
(6) to
establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or
(7) 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(b); or
(8) (A) to
close this Indenture with respect to the authentication and delivery of additional series of Securities or (B) to cure any ambiguity,
to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Indenture; provided such action under clause (B) shall
not adversely affect the interests of the Holders of Securities of any series and any related coupons in any material respect; or
(9) 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 908 of this Indenture, or reduce the requirements of Section 1404
for quorum or voting with respect to Securities of such series, or
(3) modify
any of the provisions of this Section, 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 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 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 Trustee’s 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, 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 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 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.
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 Company’s 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.
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 the bank through which payment
of funds to the Paying Agent will be made to deliver to the Paying Agent by 10:00 a.m. (New York Time) two Business Days prior
to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention
to make such payment.
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, 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 (or such shorter period as may be specified under applicable law) 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.
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 Company’s
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 cause all its properties to be
maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be properly and advantageously conducted at all times 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 shall prevent or restrict the sale, abandonment or other disposition of any of such
properties if such action is, in the judgment of the Company desirable in the conduct of the business of the Company and not disadvantageous
in any material respect to the Holders.
Section 907. Corporate
Existence.
The Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence (corporate or other) and the rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries as a whole, as the case may be.
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(18) for Securities of such series, in any covenants added to Article Nine
pursuant to Section 301(18) 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.
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.
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,
(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 Company’s 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), 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.
The Company will cause the bank through which payment
of funds to the Trustee or the Paying Agent will be made to deliver to the Trustee or the Paying Agent, as the case may be, by 10:00
a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or
authenticated Swift MT 100 Message) of its intention to make such payment.
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), 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; and 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.
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 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 Holder’s 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.
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 1103, 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.
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.
The Company will cause the bank through which payment
of funds to the Trustee or the Paying Agent will be made to deliver to the Trustee or the Paying Agent, as the case may be, by 10:00
a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or
authenticated Swift MT 100 Message) of its intention to make such payment.
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.
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 issued by the Company, 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.
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 Holder’s 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
or 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 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; and 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.
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; 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 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 all their 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 Company’s and the Trustee’s 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 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, their 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(3) or Section 501(6) or otherwise, as the case may be, 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:
(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
hereof, 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 hereof, 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).
(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 with
respect to such Securities or any related coupons shall have occurred and be continuing on the date of 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) The
Company has delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so
created to be subject to the Investment Company Act of 1940, as amended.
(8) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by which it is bound.
(9) Notwithstanding
any other provisions of this Section, 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.
(10) 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.
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 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.
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 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 Toronto, Ontario, Canada 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 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.
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.
Subject to the foregoing, at the reconvening of
any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in 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 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.
(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.
Section 1407. Waiver
of Jury Trial.
Each of the Company and the Trustee hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of
or relating to this Indenture, the Securities or the transactions contemplated hereby.
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.
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.]
New Gold Inc.
% [Debenture] [Note] [due] [Due]
New Gold Inc., a
corporation incorporated under the laws of British Columbia, Canada (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], 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 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.
| * | 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. |
| | |
| ** | Insert date from which interest
is to accrue or, if the Securities are to be sold “flat”, the closing date of the offering. |
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: |
New Gold
Inc. |
| |
|
| |
By |
|
| |
|
| |
By |
|
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
as
Trustee
[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 New Gold Inc. 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.]****
| ** | Include
if a discount security. |
| | |
| *** | Include
in a global Security. |
| | |
| **** | Include
if this series of Securities may be reopened pursuant to Section 301 of the Indenture. |
[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 | | |
| Redemption
Price | | |
| Year | | |
| Redemption
Price | |
| | | |
| % | | |
| | | |
| % | |
| | | |
| % | | |
| | | |
| % | |
| | | |
| % | | |
| | | |
| % | |
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.]*
[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
Holder’s 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].
| * | Include
if the Securities are subject to redemption or replace with any other redemption provisions
applicable to the Securities. |
| | |
| ** | Include
if the Securities are subject to a sinking fund. |
| | |
| *** | Include
if the Securities are subject to repayment at the option of the Holders. |
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.
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 Depository, 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
for global security. |
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.
[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 to
% 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.] |
ASSIGNMENT FORM*
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
| |
|
| (INSERT ASSIGNEE’S SOC. SEC., SOC. INS. OR TAX ID NO.) |
|
(Print or type assignee’s name, address and zip or postal code)
and irrevocably appoint
to transfer this Security on the books of the Company. The agent may substitute another to act for him.
| Dated: |
|
| Your Signature: |
|
| | |
(Sign exactly as name appears on the other side of this Security) |
| Signature Guarantee: |
|
| | |
(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 |
EXHIBIT B
FORMS OF CERTIFICATION
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 trust’s
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 New Gold Inc. 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.$] of
such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange
for an interest in a Permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection
of any interest) cannot be made until we do so certify.
We understand that this certificate may be required
in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated:
| [To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable] |
|
| |
[Name of Person Making Certification] |
| |
| |
(Authorized Signatory) |
| |
Name: |
| |
Title: |
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written
certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in
our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially
in the form attached hereto, as of the date hereof, [U.S.$] 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 trust’s 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 New Gold Inc. 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.
Dated:
| [To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable] |
|
| |
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CLEARSTREAM] |
| |
|
EXHIBIT 107
Calculation of Filing Fee Tables
Form F-10
(Form Type)
New Gold Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| |
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule or
Instruction |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount of
Registration
Fee |
| Newly Registered Securities |
|
| Fees to Be Paid |
Unallocated
(Universal)
Shelf |
— |
457(o) |
(1) |
(1) |
$600,000,000
(2) |
$147.60
per
$1,000,000 |
$88,560 |
|
Fees Previously
Paid |
— |
— |
— |
— |
— |
— |
— |
— |
| |
Total Offering Amounts |
|
$600,000,000 |
|
$88,560 |
| |
Total Fees Previously Paid |
|
|
|
N/A |
| |
Total Fee Offsets |
|
|
|
$0 |
| |
Net Fee Due |
|
|
|
$88,560 |
(1) There
are being registered under the Registration Statement to which this exhibit pertains (this “Registration Statement”) such
indeterminate number of common shares, debt securities, subscription receipts, warrants and units of New Gold Inc. (the “Registrant”)
as shall have an aggregate initial offering price not to exceed US$600,000,000 (or its equivalent
in any other currency used to denominate the securities).
(2) Estimated solely for the purpose of calculating the amount
of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933.
New Gold (AMEX:NGD)
과거 데이터 주식 차트
부터 4월(4) 2024 으로 5월(5) 2024
New Gold (AMEX:NGD)
과거 데이터 주식 차트
부터 5월(5) 2023 으로 5월(5) 2024
