As filed with the Securities and Exchange Commission on March 19, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-10
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SKEENA RESOURCES LIMITED
(Exact name of Registrant as specified in its charter)
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British Columbia
(Province or other Jurisdiction
of Incorporation or Organization)
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1040
(Primary Standard Industrial
Classification Code Number)
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Not Applicable
(I.R.S. Employer
Identification No.)
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1133 Melville Street, Suite 2600
Vancouver, British Columbia,
Canada V6E 4E5
(604) 684-8725
(Address and telephone number of Registrant’s principal executive offices)
CT Corporation System
28 Liberty Street
New York, New York 10005
(212) 894-8940
(Name, address and telephone number of agent for service in the United States)
Copies to:
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Ryan J. Dzierniejko
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York, United States 10001-8602
(212) 735-3712
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Andrew MacRitchie
Skeena Resources Limited
1133 Melville Street, Suite 2600
Vancouver, British Columbia, Canada V6E 4E5
(604) 684-8725
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Bob J. Wooder
Kathleen Keilty
Blake, Cassels & Graydon LLP
1133 Melville Street, Suite 3500
Vancouver, British Columbia, Canada V6E 4E5
(604) 631-3300
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Approximate date of commencement of proposed sale of the securities to the public:
From time to time after this Registration Statement becomes effective.
Province of British Columbia, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box):
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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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B.
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At some future date (check the appropriate box below):
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pursuant to Rule 467(b) on (date) at (time).
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pursuant to Rule 467(b) on (date) at (time) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on (date).
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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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4.
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after the filing of the next amendment to this Form (if preliminary material is being filed).
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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. ☒
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS
SHORT FORM BASE SHELF PROSPECTUS
New Issue and Secondary Offering March 19, 2025
SKEENA RESOURCES LIMITED
$525,000,000
Common Shares
Debt Securities
Warrants
Subscription Receipts
Rights
Options
Units
Skeena Resources Limited (“Skeena” or the “Corporation”) may from time to time offer and issue (i) common shares (“Common Shares”), (ii) debt securities (“Debt Securities”), (iii) warrants to purchase Common Shares or Debt Securities (“Warrants”), (iv) subscription receipts (“Subscription Receipts”), (v) rights exercisable to acquire, or convertible into, Common Shares (“Rights”), (vi) options exercisable to acquire Common Shares (“Options”) or (vii) any combination of such securities or units (“Units”) comprised of one or more of such securities (the Common Shares, Debt Securities, Warrants, Subscription Receipts, Rights, Options and Units are collectively referred to as the “Securities”) with an aggregate offering price not to exceed $525,000,000 (or its equivalent in U.S. dollars or any other currency or currency unit used to denominate the Securities at the time of offering) during the 25-month period that this short form base shelf prospectus (this “Prospectus”), including any amendments hereto, remains valid.
The outstanding Common Shares are listed on the Toronto Stock Exchange (the “TSX”) and the New York Stock Exchange (“NYSE”) under the symbol “SKE”. The closing price of the Common Shares on the TSX and the NYSE on March 18, 2025, the last trading day prior to the date of this Prospectus, was $15.99 and US$11.17, respectively. There is currently no market through which Securities, other than the Common Shares, may be sold and purchasers may not be able to resell such Securities purchased under this Prospectus. This may affect the pricing of the Securities, other than the Common Shares, in the secondary market, the transparency and availability of trading prices, the liquidity of these Securities and the extent of issuer regulation. See “Risk Factors”.
We are permitted under a multijurisdictional disclosure system adopted by the securities regulatory authorities in Canada and the United States (the “MJDS”) to prepare this Prospectus in accordance with the disclosure requirements of Canada. Prospective investors should be aware that such requirements are different from those of the United States. The financial statements incorporated by reference in this Prospectus have generally been prepared in accordance with International Financial Reporting Standards, as issued by the International Accounting Standards Board, and are subject to Canadian auditing and auditor independence standards. As a result, our financial statements may not be comparable to financial statements of United States companies prepared in accordance with United States generally accepted accounting principles.
Owning our Securities may subject you to tax consequences both in the United States and Canada. This Prospectus or any applicable shelf prospectus supplement (each, a “Prospectus Supplement”) may not describe these tax consequences fully. You should read the tax discussion in any applicable Prospectus Supplement with respect to any particular offering and consult your own tax advisor with respect to your own particular circumstances.
Your ability to enforce civil liabilities under the United States federal securities laws may be affected adversely because we are incorporated in British Columbia, Canada, some of our officers and directors and some or all of the experts named in this Prospectus are Canadian residents, and the underwriters, dealers, agents or selling securityholders named in any Prospectus Supplement may be,
(continued on next page)
(continued from cover)
residents of a country other than the United States, and all or a substantial portion of our assets and the assets of said persons are located outside of the United States. See “Enforceability of Civil Liabilities”.
NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) NOR ANY STATE SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED THE SECURITIES OFFERED HEREBY, PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
All applicable information permitted under securities legislation to be omitted from this Prospectus that has been so omitted will be contained in one or more accompanying Prospectus Supplement 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. You should read this Prospectus and any applicable Prospectus Supplement carefully before you invest in any Securities issued pursuant to this Prospectus.
Securities may be sold pursuant to this Prospectus through underwriters, dealers or selling securityholders or directly or through agents designated from time to time at amounts and prices and other terms determined by the Corporation or any selling securityholders. In connection with any underwritten offering of Securities, the underwriters may over-allot or effect transactions which stabilize or maintain the market price of the Securities offered. Such transactions, if commenced, may discontinue at any time. A purchaser who acquires Securities forming part of the underwriters’ 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”.
A Prospectus Supplement will set out the names of any underwriters, dealers, agents or selling securityholders involved in the sale of our Securities, the amounts, if any, to be purchased by underwriters, the plan of distribution for such Securities, including the anticipated net proceeds to the Corporation from the sale of such Securities, the amounts and prices at which such Securities are sold and, if applicable, the compensation of such underwriters, dealers or agents.
Certain of the Corporation’s directors, namely Walter Coles Jr., Executive Chairman, Greg Beard, Director, and Nathalie Sajous, Director, reside outside of Canada and have each appointed Blakes Vancouver Services Inc., c/o Blake, Cassels & Graydon LLP, located at Suite 3500, 1133 Melville Street, Vancouver, British Columbia, V6E 4E5, Canada as agent for service of process in Canada. Purchasers are advised that it may not be possible for investors to enforce judgments obtained in Canada against any person or company that is incorporated, continued or otherwise organized under the laws of a foreign jurisdiction or resides outside of Canada, even if such person or company has appointed an agent for service of process in Canada. See “Agent for Service of Process”.
The Corporation’s head and registered office is located at Suite 2600, 1133 Melville Street, Vancouver, British Columbia, V6E 4E5.
No underwriter has been involved in the preparation of this Prospectus nor has any underwriter performed any review of the contents of this Prospectus.
An investment in the Securities being offered is highly speculative and involves significant risks that you should consider before purchasing such Securities. You should carefully review the “Risk Factors” section of this Prospectus (and in any Prospectus Supplement) and in the documents incorporated by reference as well as the information under the heading “Caution Regarding Forward-Looking Information” and consider such risks and information in connection with an investment in the Securities.
Investors should rely only on the information contained in or incorporated by reference into this Prospectus and any applicable Prospectus Supplement. We have not authorized anyone to provide investors with different information. Information contained on our website shall not be deemed to be a part of this Prospectus (including any applicable Prospectus Supplement) or incorporated by reference and should not be relied upon by prospective investors for the purpose of determining whether to invest in the Securities. We or any selling securityholders will not make an offer of these Securities in any jurisdiction where the offer or sale is not permitted. Investors should not assume that the information contained in this Prospectus is accurate as of any date other than the date on the face page of this Prospectus, the date of any applicable Prospectus Supplement, or the date of any documents incorporated by reference herein.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
Investors should rely only on the information contained in or incorporated by reference in this Prospectus or any applicable Prospectus Supplement and on the other information included in the registration statement of which this Prospectus forms a part. The Corporation has not authorized anyone to provide investors with different or additional information. If anyone provides you with different or additional information, you should not rely on it. The Corporation is not making an offer to sell or seeking an offer to buy the Securities offered pursuant to this Prospectus in any jurisdiction where the offer or sale is not permitted. An investor should assume that the information contained in this Prospectus or any applicable Prospectus Supplement is accurate only as of the date on the front of those documents and that information contained in any document incorporated by reference is accurate only as of the date of that document, regardless of the time of delivery of this Prospectus or any applicable Prospectus Supplement or of any sale of our Securities pursuant thereto, unless specified otherwise. The Corporation’s business, financial condition, results of operations and prospects may have changed since those dates.
Market data and certain industry forecasts used in this Prospectus or any applicable Prospectus Supplement and the documents incorporated by reference in this Prospectus or any applicable Prospectus Supplement were obtained from market research, publicly available information and industry publications. The Corporation believes that these sources are generally reliable, but the accuracy and completeness of this information is not guaranteed. The Corporation has not independently verified such information, and the Corporation does not make any representation as to the accuracy of such information.
In this Prospectus and any Prospectus Supplement, unless otherwise indicated, all dollar amounts and references to “US$” are to U.S. dollars and references to “$” and “C$” are to Canadian dollars. See “Exchange Rate Information”.
In this Prospectus and in any Prospectus Supplement, unless the context otherwise requires, references to “we”, “us”, “our” or similar terms, as well as references to “Skeena” or the “Corporation”, refer to Skeena Resources Limited together with our subsidiaries.
CAUTIONARY NOTE TO UNITED STATES INVESTORS
We are permitted under the MJDS to prepare this Prospectus, any Prospectus Supplement, and the documents incorporated by reference herein or therein, in accordance with the requirements of Canadian securities laws, which differ from the requirements of United States securities laws. As a result, the Corporation reports the mineral reserves and mineral resources of the projects it has an interest in according to Canadian standards. Technical disclosure regarding our properties included herein and in the documents incorporated herein by reference has not been prepared in accordance with the requirements of U.S. securities laws.
Unless otherwise indicated, all mineral reserve and mineral resource estimates included in this Prospectus and the documents incorporated by reference herein have been prepared in accordance with National Instrument 43-101 — Standards of Disclosure for Mineral Projects (“NI 43-101”) and the Canadian Institute of Mining, Metallurgy and Petroleum (the “CIM”) — CIM Definition Standards on mineral S-2 51338566.8 resources and mineral reserves, adopted by the CIM Council, as amended (the “CIM Standards”). These standards differ significantly from the mineral property disclosure requirements of the SEC in Regulation S-K Subpart 1300 (the “SEC Modernization Rules”) under the United States Securities Exchange Act of 1934, as amended (the “U.S. Exchange Act”). Accordingly, the Corporation’s disclosure of mineralization and other technical information in this Prospectus and the documents incorporated herein by reference may differ significantly from the information that would be disclosed had the Corporation prepared the information under the standards adopted under the SEC Modernization Rules. The mineral resource and mineral reserve figures referred to in this Prospectus and the documents incorporated herein by reference are estimates and no assurances can be given that the indicated levels of mineral will be produced. Such estimates are expressions of judgment based on knowledge, mining experience, analysis of drilling results and industry practices. Valid estimates made at a given time may significantly change when new information becomes available. By their nature, mineral resource and mineral reserve estimates are imprecise and depend, to a certain extent, upon statistical inferences which may ultimately prove unreliable. Any inaccuracy or future reduction in such estimates could have a material adverse impact on the Corporation.
CAUTION REGARDING FORWARD-LOOKING INFORMATION
This Prospectus and the documents incorporated by reference herein contain “forward-looking information” or “forward-looking statements” within the meaning of applicable Canadian and United States securities legislation (collectively herein referred to as “forward-looking information”). Generally, forward-looking information can be identified by the use of forward-looking terminology such as “plans”, “expects” or “does not expect”, “is expected”, “budget” or “budgeted”, “scheduled”, “estimates”, “projects”, “forecasts”, “intends”, “proposes”, “completes”, “anticipates” or “does not anticipate”, “believes”, “likely”, “may”, “will” or “will continue”, “should”, “intend”, “anticipate”, “proposed”, “potential”, or variations of such words and phrases or statements that certain actions, events or results “may”, “can”, “could”, “would”, “might”, “will be taken”, “until such time”, “occur”, “continue”, or “be achieved”, and other similar words and expressions, including negative and grammatical variations thereof, or statements that certain events or conditions “may” or “will” happen, or by discussions of strategy. Forward-looking information includes, but is not limited to, estimates, plans, expectations, opinions, forecasts, projections, priorities, strategies, targets, guidance, or other statements that are not statements of fact. Forward-looking information includes, but is not limited to, statements with respect to:
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the offering and sale of the Securities;
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the use of proceeds from the sale of the Securities;
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the performance of the Corporation’s business and operations;
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the results of the feasibility study for the Eskay Creek Project (the “Feasibility Study”), including processing capacity of the mine and anticipated mine life;
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the development, expansion, and assumed future results of operations of the Corporation’s projects;
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the intention to grow the business and operations of the Corporation;
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the applicability of certain laws, regulations, and any amendments thereof;
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the ability to access sufficient capital from internal and external sources and the ability to access sufficient capital on favourable terms;
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anticipated outcomes of lawsuits and other legal issues, and their direct and indirect impacts on other activities of the Corporation, particularly in relation to potential receipt or retention of regulatory approvals, and ongoing civil claims;
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anticipated actions of governmental and regulatory authorities and Indigenous groups;
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anticipated success of the construction and start-up of operations at the Eskay Creek Project (as defined herein);
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anticipated success of the exploration, development and advancement of the Company’s other mineral property interests;
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collection of receivables;
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the estimation of mineral resources;
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anticipated conclusions of project studies, including preliminary economic assessments, prefeasibility studies and feasibility studies;
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anticipated achievement of milestones for the Eskay Creek Project (as defined below) and timing for completion;
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the accuracy of capital and operating cost estimates for projects;
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the ability to attract and retain skilled staff;
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requirements for additional capital;
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further drawdowns under the Corporation’s Project Financing Package (as defined herein);
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the Corporation’s ability to repurchase a portion of the Gold Stream Arrangement (as defined herein);
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plans for reclamation and replanting of disturbed sites;
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the ability of the Corporation to generate cash flow from operations;
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expectations of market prices and costs, including the impact of foreign exchange rates;
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income and sales tax regulatory matters, tariffs, competition, sales projections, currency, and interest rate fluctuations;
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renouncing future expenditures to purchasers of Flow-Through Common Shares (as defined herein);
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the competitive and business strategies of the Corporation;
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the realization of mineral reserve estimates;
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continuation of rights to explore and mine;
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exploration, development and expansion plans and objectives;
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the ability to expand existing mineral reserves and mineral resources, generally;
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environmental, permitting and social risks;
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the future development, costs and outcomes of the Corporation’s exploration projects;
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permits, licenses and treatment under governmental regulatory regimes; and
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anticipated future timelines, especially involving third parties and / or activities requiring permits.
With respect to the forward-looking information contained in this Prospectus or documents incorporated by reference herein, we have made assumptions regarding, among other things: (i) our ability to generate cash flow from operations and obtain necessary financing on acceptable terms; (ii) general economic, financial market, regulatory, and political conditions in which we operate; (iii) existence of a basic level of public support for mine development from the local community; (iv) competition; (v) anticipated and unanticipated costs;
(vi) government and Tahltan Nation regulation of our activities and production and in the areas of taxation and environmental protection; (vii) the timely receipt of any required regulatory approvals; (viii) our ability to obtain qualified staff, equipment, and services in a timely and cost efficient manner; (ix) our ability to conduct operations in a safe, efficient, and effective manner; (x) the ability to obtain permits or approvals required to conduct planned exploration programs; (xi) the results of exploration; (xii) the accuracy of geological and engineering assumptions; (xiii) the likelihood of future operational difficulties (including cost escalation, unavailability of materials and equipment, industrial disturbances or other job action and possible events related to health, safety and environmental matters); (xiv) the likelihood of social unrest; (xv) the likelihood of the failure of counterparties to perform their contractual obligations; (xvi) changes in priorities, plans, strategies and prospects; (xvii) general economic, industry, business and market conditions; (xviii) disruptions or changes in the credit or securities markets; (xix) changes in law, regulation, or application and interpretation of the same; (xx) the ability to implement business plans and strategies, and to pursue business opportunities; (xxi) rulings by courts or arbitrators, proceedings and investigations; (xxii) inflationary pressures; (xxiii) future impacts of pandemics or other public health crises; and (xxiv) various other events, conditions or circumstances that could disrupt Skeena’s priorities, plans, strategies and prospects.
Forward-looking information, while based on management’s best estimates and assumptions, is subject to known and unknown risks, uncertainties and other factors that may cause the actual results, level of activity, performance or achievements of Skeena to be materially different from those expressed or implied by such forward-looking information, including but not limited to: risks related to general economic conditions and credit availability; actual results of current exploration activities; unanticipated reclamation expenses; changes in project parameters as plans continue to be refined; fluctuations in prices of metals; fluctuations in foreign currency exchange rates; increases in market prices of mining consumables; possible variations in mineral reserves, grade or recovery rates; failure of plant, equipment or processes to operate as anticipated; accidents, labour disputes, title disputes, claims and limitations on insurance coverage and other risks of the mining industry; negotiation of agreements necessary to interconnect infrastructure for mining operations, including delays in reaching an agreement or costs associated with alternatives; delays in obtaining governmental approvals or financing or in the completion of development or construction activities; changes in national and local government regulation of mining operations, tax rules and regulations, and political and economic developments in countries in which Skeena operates; actual resolutions of legal and tax matters; no existing trading market for Securities other than for our Common Shares; new diseases and epidemics; conflicts in Europe and the Middle East; the geopolitical risks associated with contracting into regions or countries that are potential concentrate customers, including China; negative operating cash flow; our broad discretion in the use of net proceeds; loss of investment; smelter terms being market dependent and less favorable in the future, negatively affecting project economics; the possible future restriction of export of certain minerals (especially critical minerals) to other jurisdictions, limiting the choice of smelters available to process the Corporation’s material; dilution from equity financing; equity securities being subject to trading and volatility risks; sales by existing shareholders reducing Common Share prices; dividend distributions; securities class action litigation; publication of inaccurate or unfavourable research about the Corporation’s business; the uncertainty of maintaining a liquid trading market for the Common Shares; difficulty in enforcing U.S. judgments against the Corporation; risks related to the Debt Securities being unsecured; risks related to the Corporation being characterized as a passive foreign investment company, as well as those factors discussed in the section titled “Risk Factors” in this Prospectus and the documents incorporated or deemed to be incorporated by reference herein, which readers are advised to carefully review and consider.
Certain of the forward-looking information and other information contained in this Prospectus or documents incorporated by reference herein concerning the mining industry and the general expectations of Skeena concerning the mining industry are based on estimates prepared by Skeena using data from publicly available governmental sources, market research, industry analysis, and on assumptions based on data and knowledge of the mining industry, which Skeena believes to be reasonable. However, such data is inherently imprecise. While Skeena is not aware of any misstatement regarding any industry or government data presented in this Prospectus or documents incorporated by reference herein, the mining industry involves risks and uncertainties that are subject to change based on various factors and the accuracy and completeness of this information cannot be guaranteed.
Although Skeena has attempted to identify important factors that could cause actual results to differ materially from those contained in forward-looking information, there may be other factors that cause results not to be as anticipated, estimated or intended. There can be no assurance that such forward-looking information will prove to be accurate, as actual results and future events could differ materially from those anticipated in such forward-looking information. Accordingly, readers are cautioned not to place undue reliance on forward-looking information. The forward-looking information contained in each of the documents incorporated by reference herein is made as of the date of such document and, accordingly, is subject to change after such date. The Corporation does not undertake to update any forward-looking information, whether as a result of new information, future events or otherwise except as, and to the extent, required by applicable securities laws.
All of the forward-looking information in this Prospectus or documents incorporated by reference herein is qualified by these cautionary statements and other cautionary statements or factors contained herein, and there can be no assurance that the actual results or developments will be realized or, even if substantially realized, that they will have the expected consequences to, or effects on, Skeena.
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference in this Prospectus from documents filed with, or furnished to, the securities commissions or similar authorities in Canada and with the SEC in the United States. Copies of the documents incorporated herein by reference may be obtained on request without charge from the Corporate Secretary of the Corporation at the address set forth on the cover page of this Prospectus and are also available electronically at www.sedarplus.com (“SEDAR+”). Documents filed with, or furnished to, the SEC are available through the SEC’s Electronic Data Gathering and Retrieval System (“EDGAR”) at www.sec.gov.
The following documents of the Corporation filed with the securities commissions or similar authorities in each of the provinces of Canada, except the province of Québec, and filed with, or furnished to, the SEC are specifically incorporated by reference into, and form an integral part of, this Prospectus:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Any document of the type required by National Instrument 44-101 — Short Form Prospectus Distributions to be incorporated by reference into a short form prospectus, including any annual information forms, material change reports (except confidential material change reports), business acquisition reports, interim financial statements, annual financial statements and the independent auditor’s report thereon, management’s discussion and analysis and information circulars of Skeena and any template version of “marketing materials” (as defined in National Instrument 41-101 — General Prospectus Requirements) filed with securities commissions or similar authorities in Canada after the date of this Prospectus and prior to the completion or withdrawal of the distribution of Securities shall be deemed to be incorporated by reference into this Prospectus.
In addition, to the extent that any document or information incorporated by reference into this Prospectus is filed with, or furnished to, the SEC pursuant to the U.S. Exchange Act after the date of this Prospectus, such document or information will be deemed to be incorporated by reference as an exhibit to the registration statement of which this Prospectus forms a part (in the case of documents or information deemed to be furnished on Form 6-K, only to the extent specifically stated therein).
Any statement in this Prospectus or a document incorporated or deemed to be incorporated by reference herein is deemed to be modified or superseded, for purposes of this Prospectus, to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of a modifying or superseded statement shall not be deemed an admission for any purposes that the modified or superseded statement, when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made. Any statement so modified or superseded will not be deemed in its unmodified or superseded form, to constitute a part of this Prospectus, except as so modified or superseded.
Upon the Corporation’s filing of a new annual information form and the related annual financial statements and management’s discussion and analysis with applicable securities regulatory authorities during the currency of this Prospectus, the previous annual information form, the previous annual financial statements and management’s discussion and analysis and all interim financial statements, supplemental information, material change reports and information circulars filed prior to the commencement of our financial year in which the new annual information form is filed will be deemed no longer to be incorporated into this Prospectus for purposes of future offers and sales of Securities under this Prospectus. Upon interim consolidated financial statements and the accompanying management’s discussion and analysis and material change report being filed by the Corporation with the applicable securities regulatory authorities during the duration of this Prospectus, all interim consolidated financial statements and the accompanying management’s discussion and analysis filed prior to the new interim consolidated financial statements shall be deemed no longer to be incorporated into this Prospectus for purposes of future offers and sales of Securities under this Prospectus. Upon the Corporation’s filing of an information circular in connection with an annual general meeting, the information circular filed in connection with the previous annual general meeting (unless such information circular also related to a special meeting) will be deemed no longer to be incorporated into this Prospectus for purposes of future offers and sales of Securities under this Prospectus.
References to the Corporation’s website or any other website in this Prospectus or any documents that are incorporated by reference herein do not incorporate by reference the information on such website into the Prospectus, and we disclaim any such incorporation by reference.
ADDITIONAL INFORMATION
A registration statement on Form F-10 will be filed by the Corporation with the SEC in respect of the offering of Securities. The registration statement, of which this Prospectus constitutes a part, contains additional information not included in this Prospectus, certain items of which are contained in the exhibits to such registration statement, pursuant to the rules and regulations of the SEC.
In addition to the Corporation’s continuous disclosure obligations under the applicable securities laws of certain provinces of Canada, the Corporation is subject to the information requirements of the U.S. Exchange
Act, and in accordance therewith the Corporation files with or furnishes to the SEC reports and other information. The reports and other information that the Corporation files with or furnishes to the SEC are prepared in accordance with the disclosure requirements of Canada, which differ in certain respects from those of the United States. As a foreign private issuer, the Corporation is exempt from the rules under the U.S. Exchange Act prescribing the furnishing and content of proxy statements, and the Corporation’s officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the U.S. Exchange Act. In addition, the Corporation may not be required to publish financial statements as promptly as U.S. companies. Copies of any documents that the Corporation has filed with the SEC may be read at the SEC’s EDGAR website, accessible at www.sec.gov.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents have been or will be filed or furnished with the SEC as part of the registration statement on Form F-10 of which this Prospectus forms a part: (i) the documents listed under the heading “Documents Incorporated by Reference”; (ii) powers of attorney from our directors and officers, as applicable; (iii) the consent of KPMG LLP; (iv) the consent of each expert listed in the exhibit index of the registration statement; 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 U.S. Exchange Act.
EXCHANGE RATE INFORMATION
The following table sets forth for each period indicated: (i) the exchange rates in effect at the end of the period; (ii) the high and low exchange rates during such period; and (iii) the average exchange rates for such period, for one Canadian dollar, expressed in U.S. dollars, as quoted by the Bank of Canada.
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Nine Months Ended September 30,
|
|
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|
|
2024
|
|
|
2023
|
|
|
2022
|
|
| |
|
|
US$
|
|
|
US$
|
|
|
US$
|
|
|
Closing
|
|
|
|
|
0.7408 |
|
|
|
|
|
0.7396 |
|
|
|
|
|
0.7296 |
|
|
|
High
|
|
|
|
|
0.7510 |
|
|
|
|
|
0.7617 |
|
|
|
|
|
0.8031 |
|
|
|
Low
|
|
|
|
|
0.7216 |
|
|
|
|
|
0.7243 |
|
|
|
|
|
0.7285 |
|
|
|
Average
|
|
|
|
|
0.7351 |
|
|
|
|
|
0.7432 |
|
|
|
|
|
0.7798 |
|
|
| |
|
|
Year Ended December 31,
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| |
|
|
2024
|
|
|
2023
|
|
|
2022
|
|
| |
|
|
US$
|
|
|
US$
|
|
|
US$
|
|
|
Closing
|
|
|
|
|
0.6950 |
|
|
|
|
|
0.7561 |
|
|
|
|
|
0.7383 |
|
|
|
High
|
|
|
|
|
0.7510 |
|
|
|
|
|
0.7617 |
|
|
|
|
|
0.8031 |
|
|
|
Low
|
|
|
|
|
0.6937 |
|
|
|
|
|
0.7207 |
|
|
|
|
|
0.7217 |
|
|
|
Average
|
|
|
|
|
0.7302 |
|
|
|
|
|
0.7410 |
|
|
|
|
|
0.7692 |
|
|
On March 18, 2025, the daily average exchange rate as quoted by the Bank of Canada was C$1.00 = US$0.6993 (US$1.00 = C$1.4301).
THE CORPORATION
Overview
Skeena is a leading precious metals developer that is focused on advancing the Eskay Creek Gold-Silver Project — a past producing mine located in the renowned Golden Triangle in British Columbia, Canada. Skeena is committed to sustainable mining practices and maximizing the potential of its mineral resources. In partnership with the Tahltan First Nation, Skeena strives to foster positive relationships with Indigenous communities while delivering long-term value and sustainable growth for its stakeholders.
Figure 1: Property Locations — British Columbia’s Golden Triangle
Corporate Structure
Skeena was incorporated as Progress Petroleum Ltd. on September 13, 1979 in accordance with the Company Act (British Columbia). The Corporation changed its name to Prolific Petroleum Ltd. on October 24, 1979, then to Prolific Resources Ltd. on June 8, 1987 and finally, to Skeena Resources Limited on June 4, 1990. In 2006, the Corporation transitioned from the Company Act (British Columbia) to the Business Corporation Act (British Columbia) (the “BCBCA”).
Recent Developments
On June 24, 2024, the Corporation announced that it had secured a financing package with Orion Resource Partners for the development, construction, and general working capital required to advance the Eskay Creek Project (the “Project Financing Package”). The Project Financing Package was comprised of:
•
up to a US$100 million equity investment;
•
a US$200 million gold stream, consisting of a series of five tranches to be provided subject to the satisfaction of certain customary conditions (the “Gold Stream Arrangement”);
•
US$350 million of committed capital available from a senior secured term loan with 1% standby fee and no break fee (the “Senior Secured Term Loan”); and
•
a US$100 million cost over-run facility in the form of an additional gold stream subject to the same standby terms as the Senior Secured Term Loan.
On December 16, 2024, the Corporation announced that the British Columbia Ministry of Mining and Critical Minerals had provided approval to the Corporation for the extraction of a 10,000-tonne bulk sample from the Eskay Creek Project. The bulk sample application had been the subject of consultation with local indigenous groups and local communities. Additionally, the Corporation announced the completion of
extensive environmental baseline monitoring, engineering design, geotechnical investigation, stockpile assessment and safety and reclamation studies to support the bulk sample program. The Corporation also announced that, following the Corporation’s initial Environmental Assessment application submission in mid-August 2024, the Eskay Creek Project had formally commenced the 180-day legislated application review process under the British Columbia Environmental Assessment Act.
On January 6, 2025, the Corporation announced that it had received US$45 million, representing the second tranche of the Gold Stream Arrangement. This was the second of five tranches contemplated under the Gold Stream Arrangement. The funds were made available following the satisfaction of certain conditions. The Corporation expects that the remaining three tranches will be drawn in settlements of US$50 million each, subject to the satisfaction of certain customary conditions before March 31, 2026 to support continued development of the Eskay Creek Project.
On January 16, 2025, the Corporation announced drill results from its 2024 exploratory drilling program at the KSP property in the Golden Triangle of British Columbia (the “KSP Property”). During the 2024 season, 22 drillholes totaling 9,182 metres were completed across various targets on the KSP Property. Drilling by the Corporation intersected broad intervals of previously unrecognized Au-Cu porphyry mineralization featured by 381.47 metres averaging 0.71 gpt Au, 0.69 gpt Ag, 0.03% Cu beginning at 50 metres below surface. This initial phase of widely spaced exploratory drilling traced the new mineralization along a strike length of approximately 1,000 meters, with potential for further expansion through additional drilling.
On January 27, 2025, the Corporation announced a strategic investment into TDG Gold Corp. (“TDG”) to advance the Greater Shasta-Newberry project in the Toodoggone District, in British Columbia, Canada (the “Investment”). The Corporation agreed to purchase 22,000,000 TDG common shares in exchange for the sale of the Corporation’s Sofia property to TDG, and payment of C$7 million.
On February 26, 2025, the Corporation announced it had closed a bought deal offering of 3,290,000 Common Shares at a price of C$14.70 per Common Share and 2,230,000 Common Shares issued as “flow-through shares” (“Flow-Through Common Shares”) within the meaning of subsection 66(15) of the Income Tax Act (Canada) at a price of C$17.93 per Flow-Through Common Share, for aggregate gross proceeds of approximately C$88.3 million.
CONSOLIDATED CAPITALIZATION
Other than as disclosed in this Prospectus or the documents incorporated by reference herein, there have been no material changes in the share and loan capital of the Corporation since September 30, 2024 to the date of this Prospectus.
During the period covering October 1, 2024 to March 4, 2025, the Corporation issued 1,441,873 common shares pursuant to the Corporation’s equity incentive plans and as payment for acquiring mineral properties.
On February 26, 2025, the Corporation announced it had closed a bought deal offering of 3,290,000 Common Shares and 2,230,000 Flow-Through Common Shares. In connection with such offering, the Corporation added approximately $85.1 million to shareholders’ equity.
USE OF PROCEEDS
Unless otherwise specified in a Prospectus Supplement, the net proceeds to Skeena from the sale of the Securities are currently intended to be used (i) to fund environmental and engineering optimization activities at Eskay Creek, (ii) to fund permitting at Eskay Creek, (iii) to fund exploration activities on certain of the Corporation’s properties, and (iv) for general working capital purposes. More detailed information regarding the use of proceeds from the sale of Securities, and each of the principal purposes for which the Corporation intends to use those net proceeds, may be set forth in the applicable Prospectus Supplement. The Corporation may also, from time to time, issue securities (including the Securities) other than pursuant to a Prospectus Supplement to this Prospectus.
However, while detailed information regarding the use of proceeds from the sale of our Securities may be described in the applicable Prospectus Supplement, the Corporation will have broad discretion over the use of the net proceeds from an offering by the Corporation of its Securities. The final use of proceeds with respect to any particular offering may be impacted by various risk factors that may impact the Corporation’s business, financial condition and results of operations. See “Risk Factors”.
As of the date of this Prospectus, the Corporation is in the development stage with respect to its material mineral property interests and has not, as yet, achieved commercial production. The Corporation has limited cash resources, as compared with its planned expenditures, has incurred significant operating losses and negative cash flows from operations in the past, and will require additional funding in order to continue operations. The Corporation anticipates the proceeds raised in connection with the sale of the Securities will be used to fund activities that will contribute to negative cash flow in the near term. The Corporation anticipates that it will remain in a state of negative operating cash flow until commercial production is achieved, at which time the Corporation anticipates beginning to generate positive cash flow.
Unless otherwise set forth in the applicable Prospectus Supplement, the Corporation will not receive any proceeds from any sale of Securities by the selling securityholders.
SELLING SECURITYHOLDERS
Our Common Shares may, with the agreement of the Corporation, be sold under this Prospectus by way of a secondary offering by or for the account of certain of our securityholders. The prospectus supplement that we will file in connection with any offering of our Common Shares by selling securityholders will include the following information:
•
the names of the selling securityholders, and where the selling securityholder is not an individual, the name of the principal securityholder of such selling securityholder to the extent known;
•
the number or amount of our Common Shares owned, controlled or directed by each selling securityholder;
•
the number or amount of our Common Shares being distributed for the account of each selling securityholder;
•
the number or amount of Securities to be owned by the selling securityholders after the distribution and the percentage that number or amount represents of the total number of our outstanding Securities; and
•
whether our Common Shares are owned by the selling securityholders both of record and beneficially, of record only or beneficially only.
PLAN OF DISTRIBUTION
New Issue
The Corporation may sell Securities: (i) to or through underwriters or dealers, (ii) directly to purchasers, (iii) through agents, or (iv) through a combination of any of these methods of sale. The distribution of the Securities of any series may be effected from time to time in one or more transactions.
In connection with the sale of the Securities, underwriters, dealers or agents may receive compensation from the Corporation or from other parties, including in the form of underwriters’, dealers or agents’ fees, commissions or concessions. Underwriters, dealers and agents that participate in the distribution of the Securities may be deemed to be underwriters for the purposes of applicable Canadian securities legislation and any such compensation received by them from the Corporation and any profit on the resale of the Securities by them may be deemed to be underwriting commissions.
Each Prospectus Supplement with respect to Securities being offered will set forth the terms of the offering, including:
•
the name or names of any underwriters, dealers or other placement agents;
•
the number and the purchase price of, and form of consideration for, Securities;
•
any proceeds to the Corporation; and
•
any commissions, fees, discounts and other items constituting underwriters’, dealers’ or agents’ compensation.
In connection with any offering of Securities, the underwriters may over-allot or effect transactions which stabilize, maintain or otherwise affect the market price of the Securities at a level other than those which otherwise might prevail on the open market. Such transactions may be commenced, interrupted or discontinued at any time. Any purchaser who acquires securities forming part of the underwriters’ over-allocation position acquires such securities under the applicable Prospectus Supplement, regardless of whether the over-allocation position is ultimately filled through the exercise of the over-allocation option or secondary market purchases.
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 price or at negotiated prices. The prices at which the Securities may be offered may vary as between purchasers and during the period of distribution. If, in connection with the offering of Securities at a fixed price or prices, the underwriters have made a bona fide effort to sell all of the Securities at the initial offering price fixed in the applicable Prospectus Supplement, the public offering price may be decreased and thereafter further changed, from time to time, to an amount not greater than the initial offering price fixed in such Prospectus Supplement, in which case the compensation realized by the underwriters will be decreased by the amount that the aggregate price paid by purchasers for the Securities is less than the gross proceeds paid by the underwriters to the Corporation.
Only underwriters named in the Prospectus Supplement are deemed to be underwriters in connection with Securities offered by that Prospectus Supplement
Under agreements which may be entered into by us, underwriters, dealers and agents who participate in the distribution of Securities may be entitled to indemnification by us against certain liabilities, including liabilities under the U.S. Securities Act and applicable Canadian securities legislation, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. The underwriters, dealers and agents with whom we enter into agreements may be customers of, engage in transactions with, or perform services for, the Corporation in the ordinary course of business.
Each distribution of Securities will be a new issue of securities for which (other than the Common Shares) there is no established trading market. Unless otherwise specified in a Prospectus Supplement relating to a series of Securities, the Securities (other than Common Shares) will not be listed on any securities exchange.
In connection with any offering of Securities, the underwriters may over-allot or effect transactions which stabilize or maintain the market price of Securities offered at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time.
Secondary Offering
This Prospectus may also, from time to time, relate to the offering of our Common Shares by certain selling securityholders.
The selling securityholders may, with the agreement of the Corporation, sell all or a portion of our Common Shares beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If our Common Shares are sold through underwriters or broker-dealers, the selling securityholders will be responsible for underwriting discounts or commissions or agent’s commissions. Our Common Shares may be sold by the selling securityholders in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, as follows:
•
on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
•
in the over-the-counter market;
•
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
•
through the writing of options, whether such options are listed on an options exchange or otherwise;
•
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
•
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
•
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
•
an exchange distribution in accordance with the rules of the applicable exchange;
•
privately negotiated transactions;
•
short sales;
•
broker-dealers may agree with the selling securityholders to sell a specified number of such shares at a stipulated price per share;
•
a combination of any such methods of sale; and
•
any other method permitted pursuant to applicable law.
If the selling securityholders effect such transactions by selling our Common Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling securityholders or commissions from purchasers of our Common Shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of our Common Shares or otherwise, the selling securityholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of our Common Shares in the course of hedging in positions they assume. The selling securityholders may also sell our Common Shares short and deliver our Common Shares covered by this Prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling securityholders may also loan or pledge our Common Shares to broker-dealers that in turn may sell such shares.
At the time a particular offering of our Common Shares is made by any selling securityholders, a prospectus supplement will be distributed which will identify the selling securityholders and provide the other information set forth under the heading “Selling Securityholders” of such prospectus supplement, including the aggregate amount of our Common Shares being offered and the terms of the offering, including the name
or names of any underwriters, broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling securityholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
There can be no assurance that any securityholder will sell any or all of our Common Shares registered pursuant to this Prospectus.
DESCRIPTION OF SHARE CAPITAL
General Description of Capital Structure
Skeena is authorized to issue an unlimited number of Common Shares. As at March 18, 2025, there were 114,326,071 Common Shares issued and outstanding.
Common Shares
Each Common Share carries the right to attend and vote at all general meetings of shareholders. Holders of Common Shares are entitled to receive on a pro rata basis such dividends, if any, as and when declared by the board of directors of the Corporation (the “Board of Directors”) at its discretion from funds legally available for the payment of dividends and upon the liquidation, dissolution, or winding up of the Corporation are entitled to receive on a pro rata basis the net assets of the Corporation 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, nor do they contain any sinking or purchase fund provisions.
The Securities offered pursuant to this Prospectus may include Common Shares issuable upon exercise of any Debt Securities, Warrants, Rights or Options or upon conversion of any Debt Securities, Subscription Receipts or Rights.
Dividend Policy
The Corporation has not paid any dividends on the Common Shares since incorporation and does not anticipate paying dividends in the immediate future. The payment of future dividends, if any, will be reviewed periodically by the Board of Directors and will depend upon, among other things, conditions then existing including earnings, financial conditions, cash on hand, financial requirements to fund its commercial activities, development and growth, and other factors that the Board of Directors may consider appropriate in the circumstances.
DESCRIPTION OF DEBT SECURITIES
As of the date of this Prospectus, the Corporation has no Debt Securities outstanding. The Corporation may issue Debt Securities, separately or together, with Common Shares, Warrants, Subscription Receipts, Rights, Options or Units or any combination thereof, as the case may be. The Debt Securities will be issued in one or more series under an indenture (the “Indenture”) to be entered into between the Corporation and one or more trustees that will be named in a Prospectus Supplement for a series of Debt Securities. To the extent applicable, the Indenture will be subject to and governed by the U.S. Trust Indenture Act of 1939, as amended, and the BCBCA. A copy of the form of the Indenture to be entered into has been filed with the SEC as an exhibit to the registration statement and will be filed with the securities commissions or similar authorities in Canada when it is entered into. The description of certain provisions of the Indenture or of any instalment receipt and pledge agreement (see below) in this section do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the provisions of the Indenture or of any instalment receipt and pledge agreement, as applicable. Terms used in this summary that are not otherwise defined herein have the meaning ascribed to them in the Indenture or instalment receipt or pledge agreement, as applicable. Prospective purchasers should refer to the Prospectus Supplement and the Indenture or instalment receipt or pledge agreement, as applicable, relating to the specific Debt Securities being offered for the complete terms of the Debt Securities. The particular terms relating to Debt Securities offered by a Prospectus Supplement will be
described in the related Prospectus Supplement. This description may include, but may not be limited to, any of the following, if applicable:
•
the specific designation of the Debt Securities;
•
the price or prices at which the Debt Securities will be issued;
•
any limit on the aggregate principal amount of the Debt Securities;
•
the date or dates, if any, on which the Debt Securities will mature and the portion (if less than all of the principal amount) of the Debt Securities to be payable upon declaration of acceleration of maturity;
•
the rate or rates (whether fixed or variable) at which the Debt Securities will bear interest, if any, the date or dates from which any such interest will accrue and on which any such interest will be payable and the record dates for any interest payable on the Debt Securities that are in registered form;
•
the terms and conditions under which we may be obligated to redeem, repay or purchase the Debt Securities pursuant to any sinking fund or analogous provisions or otherwise;
•
the terms and conditions upon which we may redeem the Debt Securities, in whole or in part, at our option;
•
the covenants and events of default applicable to the Debt Securities;
•
the terms and conditions for any conversion or exchange of the Debt Securities for any other securities;
•
whether the Debt Securities will be issuable in registered form or bearer form or both, and, if issuable in bearer form, the restrictions as to the offer, sale and delivery of the Debt Securities which are in bearer form and as to exchanges between registered form and bearer form;
•
whether the Debt Securities will be issuable in the form of registered global securities (“Global Securities”), and, if so, the identity of the depositary for such registered Global Securities;
•
the authorized denominations in which registered Debt Securities and bearer Debt Securities will be issuable, as applicable;
•
each office or agency where payments on the Debt Securities will be made and each office or agency where the Debt Securities may be presented for registration of transfer or exchange;
•
the currency in which the Debt Securities are denominated or the currency in which we will make payments on the Debt Securities;
•
material Canadian federal income tax consequences and U.S. federal income tax consequences of owning the Debt Securities;
•
any index, formula or other method used to determine the amount of payments of principal of (and premium, if any) or interest, if any, on the Debt Securities;
•
whether or not the Debt Securities will be guaranteed by some or all of the subsidiaries of the Corporation, and the terms of any such guarantees;
•
whether the Debt Securities (or instalment receipts representing the Debt Securities, if applicable) will be listed on any securities exchange; and
•
any other terms of the Debt Securities which apply solely to the Debt Securities.
Each series of Debt Securities may be issued at various times with different maturity dates, may bear interest at different rates and may otherwise vary.
The Debt Securities offered pursuant to this Prospectus and any Prospectus Supplement may be represented by instalment receipts which will provide for payment for the Debt Securities on an instalment basis, the particular terms and provisions of which will be described in the applicable Prospectus Supplement and set out in an instalment receipt or pledge agreement or similar agreement. Any such instalment receipt will evidence, among other things: (a) the fact that a first instalment payment has been made in respect of the Debt Securities represented thereby, and (b) the beneficial ownership of the Debt Securities represented by the
instalment receipt, subject to a pledge of such Debt Securities securing the obligation to pay the balance outstanding under such Debt Securities on or prior to a certain date.
The terms on which a series of Debt Securities may be convertible into or exchangeable for Common Shares or other securities of the Corporation will be described in the applicable Prospectus Supplement. These terms may include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at the option of the Corporation, and may include provisions pursuant to which the number of Common Shares or other securities to be received by the holders of such series of Debt Securities would be subject to adjustment.
To the extent any Debt Securities are convertible into Common Shares or other securities of the Corporation, prior to such conversion the holders of such Debt Securities will not have any of the rights of holders of the securities into which the Debt Securities are convertible, including the right to receive payments of dividends or the right to vote such underlying securities.
Unless otherwise indicated in an applicable Prospectus Supplement, our Debt Securities will be unsecured obligations and will rank equally with all of our other unsecured and unsubordinated debt from time to time outstanding and equally with other securities issued under the indenture. The Debt Securities will be structurally subordinated to all existing and future liabilities, including trade payables, of our subsidiaries.
Our Board of Directors may establish the extent and manner, if any, to which payment on or in respect of a series of Debt Securities will be senior or will be subordinated to the prior payment of our other liabilities and obligations and whether the payment of principal, premium, if any, and interest, if any, will be guaranteed by any other person and the nature and priority of any security.
DESCRIPTION OF WARRANTS
General
This section describes the general terms that will apply to any Warrants for the purchase of Common Shares, or equity warrants, or for the purchase of Debt Securities, or debt warrants.
We may issue Warrants independently or together with other Securities, and Warrants sold with other Securities may be attached to or separate from the other Securities. Warrants will be issued under one or more warrant indentures or warrant agency agreements to be entered into by us and one or more banks or trust companies acting as warrant agent.
The Corporation will deliver an undertaking to the securities regulatory authority in each of the provinces of Canada, except the province of Québec, that it will not distribute Warrants that, according to the aforementioned terms as described in the applicable Prospectus Supplement for Warrants supplementing this Prospectus, are “novel” specified derivatives within the meaning of Canadian securities legislation, separately to any member of the public in Canada, unless the offering is in connection with and forms part of the consideration for an acquisition or merger transaction or unless such Prospectus Supplement containing the specific terms of the Warrants to be distributed separately is first approved by or on behalf of the securities commissions or similar regulatory authorities in each of the provinces and territories of Canada where the Warrants will be distributed.
This summary of some of the provisions of the Warrants is not complete. The statements made in this Prospectus relating to any warrant agreement and Warrants to be issued under this Prospectus are summaries of certain anticipated provisions thereof and do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all provisions of the applicable warrant agreement. You should refer to the warrant indenture or warrant agency agreement relating to the specific Warrants being offered for the complete terms of the Warrants. A copy of any warrant indenture or warrant agency agreement relating to an offering or Warrants will be filed by us with the securities regulatory authorities in applicable Canadian offering jurisdictions and the United States after we have entered into it.
The applicable Prospectus Supplement relating to any Warrants that we offer will describe the particular terms of those Warrants and include specific terms relating to the offering.
Original purchasers of Warrants (if offered separately) will have a contractual right of rescission against us in respect of the exercise of such Warrant. The contractual right of rescission will entitle such original purchasers to receive, upon surrender of the underlying Securities acquired upon exercise of the Warrant, the total of the amount paid on original purchase of the Warrant and the amount paid upon exercise, in the event that this Prospectus (as supplemented or amended) contains a misrepresentation, provided that: (i) the exercise takes place within 180 days of the date of the purchase of the Warrant under the applicable Prospectus Supplement; and (ii) the right of rescission is exercised within 180 days of the date of purchase of the Warrant under the applicable Prospectus Supplement. This contractual right of rescission will be consistent with the statutory right of rescission described under section 131 of the Securities Act (British Columbia), and is in addition to any other right or remedy available to original purchasers under section 131 of the Securities Act (British Columbia) or otherwise at law.
In an offering of Warrants, or other convertible securities, original purchasers are cautioned that the statutory right of action for damages for a misrepresentation contained in the Prospectus is limited, in certain provincial and territorial securities legislation, to the price at which the Warrants, or other convertible securities, are offered to the public under the prospectus offering. This means that, under the securities legislation of certain provinces and territories, if the purchaser pays additional amounts upon conversion, exchange or exercise of such securities, those amounts may not be recoverable under the statutory right of action for damages that applies in those provinces or territories. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for the particulars of these rights, or consult with a legal advisor.
Equity Warrants
The particular terms of each issue of equity warrants will be described in the applicable Prospectus Supplement. This description will include, where applicable:
•
the designation and aggregate number of equity warrants;
•
the price at which the equity warrants will be offered;
•
the currency or currencies in which the equity warrants will be offered;
•
the date on which the right to exercise the equity warrants will commence and the date on which the right will expire;
•
the number of Common Shares that may be purchased upon exercise of each equity warrant and the price at which and currency or currencies in which the Common Shares may be purchased upon exercise of each equity warrant;
•
the terms of any provisions allowing or providing for adjustments in (i) the number and/or class of shares that may be purchased, (ii) the exercise price per share or (iii) the expiry of the equity warrants;
•
whether we will issue fractional shares;
•
whether we have applied to list the equity warrants or the underlying shares on a stock exchange;
•
the designation and terms of any Securities with which the equity warrants will be offered, if any, and the number of the equity warrants that will be offered with each security;
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the date or dates, if any, on or after which the equity warrants and the related Securities will be transferable separately;
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whether the equity warrants will be subject to redemption and, if so, the terms of such redemption provisions;
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material U.S. and Canadian federal income tax consequences of owning the equity warrants; and
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any other material terms or conditions of the equity warrants.
Debt Warrants
The particular terms of each issue of debt warrants will be described in the related Prospectus Supplement. This description will include, where applicable:
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the designation and aggregate number of debt warrants;
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the price at which the debt warrants will be offered;
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the currency or currencies in which the debt warrants will be offered;
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the designation and terms of any Securities with which the debt warrants are being offered, if any, and the number of the debt warrants that will be offered with each security;
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the date or dates, if any, on or after which the debt warrants and the related Securities will be transferable separately;
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the principal amount of Debt Securities that may be purchased upon exercise of each debt warrant and the price at which and currency or currencies in which that principal amount of Debt Securities may be purchased upon exercise of each debt warrant;
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the date on which the right to exercise the debt warrants will commence and the date on which the right will expire;
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the minimum or maximum amount of debt warrants that may be exercised at any one time;
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whether the debt warrants will be subject to redemption, and, if so, the terms of such redemption provisions;
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material U.S. and Canadian federal income tax consequences of owning the debt warrants; and
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any other material terms or conditions of the debt warrants.
Prior to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the Securities subject to the warrants.
DESCRIPTION OF SUBSCRIPTION RECEIPTS
We may issue Subscription Receipts, which will entitle holders thereof to receive, upon satisfaction of certain release conditions and for no additional consideration, Common Shares, Warrants or any combination thereof. Subscription Receipts will be issued pursuant to one or more subscription receipt agreements (each, a “Subscription Receipt Agreement”), each to be entered into between the Corporation and an escrow agent (the “Escrow Agent”) that will be named in the relevant Prospectus Supplement. Each Escrow Agent will be a financial institution organized under the laws of Canada or a province thereof and 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 agreement governing the Subscription Receipts sold to or through such underwriter or agent.
The following description sets forth certain general terms and provisions of Subscription Receipts that may be issued hereunder and is not intended to be complete. The statements made in this Prospectus relating to any Subscription Receipt Agreement and Subscription Receipts to be issued thereunder are summaries of certain anticipated provisions thereof and are subject to, and are qualified in their entirety by reference to, all provisions of the applicable Subscription Receipt Agreement. Prospective investors should refer to the Subscription Receipt Agreement relating to the specific Subscription Receipts being offered for the complete terms of the Subscription Receipts. We will file a copy of any Subscription Receipt Agreement relating to an offering of Subscription Receipts with the securities regulatory authorities in Canada and the United States after it has been entered into it.
General
The Prospectus Supplement and the Subscription Receipt Agreement for any Subscription Receipts that we may offer will describe the specific terms of the Subscription Receipts offered. This description may include, but may not be limited to, any of the following, if applicable:
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the designation and aggregate number of Subscription Receipts being offered;
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the price at which the Subscription Receipts will be offered;
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the designation, number and terms of the Common Shares, Warrants or a combination thereof to be received by the holders of Subscription Receipts upon satisfaction of the release conditions, and any procedures that will result in the adjustment of those numbers;
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the conditions (the “Release Conditions”) that must be met in order for holders of Subscription Receipts to receive, for no additional consideration, the Common Shares, Warrants or a combination thereof;
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the procedures for the issuance and delivery of the Common Shares, Warrants or a combination thereof to holders of Subscription Receipts upon satisfaction of the Release Conditions;
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whether any payments will be made to holders of Subscription Receipts upon delivery of the Common Shares, Warrants or a combination thereof upon satisfaction of the Release Conditions;
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the identity of the Escrow Agent;
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the terms and conditions under which the Escrow Agent will hold all or a portion of the gross proceeds from the sale of Subscription Receipts, together with interest and income earned thereon (collectively, the “Escrowed Funds”), pending satisfaction of the Release Conditions;
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the terms and conditions pursuant to which the Escrow Agent will hold Common Shares, Warrants or a combination thereof pending satisfaction of the Release Conditions;
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the terms and conditions under which the Escrow Agent will release all or a portion of the Escrowed Funds to the Corporation upon satisfaction of the Release Conditions;
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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;
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procedures for the refund by the Escrow Agent to holders of Subscription Receipts of all or a portion of the subscription price of their Subscription Receipts, plus any pro rata entitlement to interest earned or income generated on such amount, if the Release Conditions are not satisfied;
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any contractual right of rescission to be granted to initial purchasers of Subscription Receipts in the event that this Prospectus, the Prospectus Supplement under which Subscription Receipts are issued or any amendment hereto or thereto contains a misrepresentation;
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any entitlement of Skeena to purchase the Subscription Receipts in the open market by private agreement or otherwise;
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whether we will issue the Subscription Receipts as global securities and, if so, the identity of the depository for the global securities;
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whether we will issue the Subscription Receipts as bearer securities, as registered securities or both;
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provisions as to modification, amendment or variation of the Subscription Receipt Agreement or any rights or terms of the Subscription Receipts, including upon any subdivision, consolidation, reclassification or other material change of the Common Shares, Warrants or other Skeena securities, any other reorganization, amalgamation, merger or sale of all or substantially all of the Corporation’s assets or any distribution of property or rights to all or substantially all of the holders of Common Shares;
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whether we will apply to list the Subscription Receipts on any exchange;
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material U.S. and Canadian federal income tax consequences of owning the Subscription Receipts; and
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any other material terms or conditions of the Subscription Receipts.
Original purchasers of Subscription Receipts will have a contractual right of rescission against us in respect of the conversion of the Subscription Receipt. The contractual right of rescission will entitle such original purchasers to receive the amount paid on original purchase of the Subscription Receipt upon surrender of the underlying securities gained thereby, in the event that this Prospectus (as supplemented or
amended) contains a misrepresentation, provided that: (i) the conversion takes place within 180 days of the date of the purchase of the Subscription Receipt under this Prospectus; and (ii) the right of rescission is exercised within 180 days of the date of purchase of the Subscription Receipt under this Prospectus. This contractual right of rescission will be consistent with the statutory right of rescission described under section 131 of the Securities Act (British Columbia), and is in addition to any other right or remedy available to original purchasers under section 131 of the Securities Act (British Columbia) or otherwise at law.
Rights of Holders of Subscription Receipts Prior to Satisfaction of Release Conditions
The holders of Subscription Receipts will not be, and will not have the rights of, shareholders of Skeena. Holders of Subscription Receipts are entitled only to receive Common Shares, Warrants or a combination thereof on exchange of their Subscription Receipts, plus any cash payments, all as provided for under the Subscription Receipt Agreement and only once the Release Conditions have been satisfied. If the Release Conditions are not satisfied, holders of Subscription Receipts shall be entitled to a refund of all or a portion of the subscription price thereof and all or a portion of the pro rata share of interest earned or income generated thereon, all as provided in the Subscription Receipt Agreement.
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 the Corporation (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 a refund of all or a portion of the subscription price for their Subscription Receipts, plus their pro-rata entitlement to interest earned or income generated on such amount, if provided for in the Subscription Receipt Agreement, in accordance with the terms of the Subscription Receipt Agreement. Common Shares or Warrants may be held in escrow by the Escrow Agent and will be released to the holders of Subscription Receipts following satisfaction of the Release Conditions at the time and under the terms specified in 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 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 we may amend any 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.
DESCRIPTION OF RIGHTS
We may issue Rights to our shareholders for the purchase of Debt Securities, Common Shares or other securities. These Rights may be issued independently or together with any other security offered hereby and may or may not be transferable by the Shareholder receiving the Rights in such offering. In connection with any offering of such Rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
Each series of Rights will be issued under a separate Rights agreement which we will enter into with a bank or trust company, as rights agent, as is specified in the relevant Prospectus Supplement. The rights agent
will act solely as our agent in connection with the certificates relating to the Rights and will not assume any obligation or relationship of agency or trust with any holders of Rights certificates or beneficial owners of Rights.
The applicable prospectus supplement will describe the specific terms of any offering of Rights for which this Prospectus is being delivered, including the following:
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the date of determining our shareholders entitled to the Rights distribution;
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the number of Rights issued or to be issued to each shareholder;
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the exercise price payable for each share of Debt Securities, Common Shares or other securities which may be purchased per each Right;
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the number and terms of the shares of Debt Securities, Common Shares or other securities which may be purchased per each Right;
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the extent to which the Rights are transferable;
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the date on which the holder’s ability to exercise the Rights shall commence, and the date on which the Rights shall expire;
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the extent to which the Rights may include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such Rights; and
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any other terms of the Rights, including the terms, procedures, conditions and limitations relating to the exchange and exercise of the Rights.
Original purchasers of Rights which are convertible into or exchangeable for other securities of the Corporation will be granted a contractual right of rescission against the Corporation in respect of the purchase and conversion or exchange of such right. The contractual right of rescission will entitle such original purchasers to receive the amount paid on original purchase of the Right and the amount paid upon conversion or exchange, upon surrender of the underlying securities gained thereby, in the event that this Prospectus (as supplemented or amended) contains a misrepresentation, provided that: (i) the conversion or exchange takes place within 180 days of the date of the purchase of the convertible or exchangeable security under this Prospectus; and (ii) the right of rescission is exercised within 180 days of the date of the purchase of the convertible or exchangeable security under this Prospectus. This contractual right of rescission will be consistent with the statutory right of rescission described under section 130 of the Securities Act (Ontario), and is in addition to any other right or remedy available to original purchasers under section 130 of the Securities Act (Ontario) or otherwise at law.
DESCRIPTION OF Options
We may offer Options separately or together with other securities. The relevant Prospectus Supplement will include details of the agreement or other instrument pursuant to which such Options will be created and issued.
The particular terms and provisions of the Options offered by any Prospectus Supplement, and the extent to which the general terms and provisions described below may apply to them, will be described in the Prospectus Supplement filed in respect of such Options. This description will include, where applicable: (i) the number of Options; (ii) the price at which the Options will be offered; (iii) the terms, conditions and procedures for the exercise of the Options into another security of ours; (iv) the amount and type of securities that may be obtained upon the exercise of each Option, and the period or periods during which any exercise must occur; (v) the designation and terms of any other securities with which the Options will be offered, if any, and the number of Options that will be offered with each security; (vi) the gross proceeds from the sale of the Options, including (if applicable) the terms applicable to such proceeds plus any interest earned thereon; (vii) the material income tax consequences of owning, holding and disposing of the Options; and (viii) any other material terms and conditions of the Options.
DESCRIPTION OF UNITS
The Corporation may issue Units, which may consist of one or more Common Shares, Warrants or any combination of Securities as is specified in the relevant Prospectus Supplement. In addition, the relevant Prospectus Supplement relating to an offering of Units will describe all material terms of any Units offered, including, as applicable:
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the designation and aggregate number of Units being offered;
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the price at which the Units will be offered;
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the designation, number and terms of the Securities comprising the Units and any agreement governing the Units;
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the date or dates, if any, on or after which the Securities comprising the Units will be transferable separately;
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whether we will apply to list the Units on any exchange;
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material U.S. and Canadian income tax consequences of owning the Units, including, how the purchase price paid for the Units will be allocated among the securities comprising the Units; and
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any other material terms or conditions of the Units.
The foregoing summary of certain of the principal provisions of the Securities is a summary of anticipated terms and conditions only and is qualified in its entirety by the description in the applicable Prospectus Supplement under which any Securities are being offered.
EARNINGS COVERAGE RATIOS
Earnings coverage ratios will be provided as required by applicable securities laws in the applicable Prospectus Supplement(s) with respect to the issuance of Debt Securities having a maturity in excess of one year pursuant to this Prospectus.
PRIOR SALES
Prior sales will be provided as required in a Prospectus Supplement with respect to the issuance of Securities pursuant to such Prospectus Supplement.
MARKET FOR SHARES
Trading prices and volume will be provided as required in a Prospectus Supplement with respect to the issuance of Securities pursuant to such Prospectus Supplement.
CERTAIN INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement may describe certain general Canadian federal income tax consequences to an investor who is a non-resident of Canada or to an investor who is a resident of Canada of acquiring, owning and disposing of any of the Securities offered thereunder. The applicable Prospectus Supplement may also describe certain general U.S. federal income tax consequences of the acquisition, ownership and disposition of any of the Securities offered thereunder by an initial investor who is a U.S. person (within the meaning of the U.S. Internal Revenue Code of 1986), including, to the extent applicable, such general consequences relating to Debt Securities payable in a currency other than the U.S. dollar, issued at an original issue discount for U.S. federal income tax purposes or containing early redemption provisions or other special items. Investors should read the general tax discussion in any Prospectus Supplement with respect to a particular offering and consult their own tax advisors with respect to their own particular circumstances.
RISK FACTORS
Investing in our Securities is speculative and involves a high degree of risk due to the nature of our business and the present stage of our development. The following risk factors, as well as risks currently unknown to us, could materially adversely affect our future business, operations and financial condition and could cause them to differ materially from the estimates described in forward-looking information relating to us, or our business, property or financial results, each of which could cause purchasers of our Securities to lose part or all of their investment. The risks set out below are not the only risks we face; risks and uncertainties not currently known to us or that we currently deem to be immaterial may also materially and adversely affect our business, financial condition, results of operations and prospects. In addition to the other information contained in this Prospectus and the documents incorporated by reference herein, you should carefully consider the risks described below, as well as the risks described under the “Risk Factors” section of the AIF before purchasing the Securities.
Risks Related to our Business
Our business requires the successful construction and start-up of a mill and the permits to do so.
In recent years in Canada, it has become increasingly challenging to build a mine. Before having a prospect of profitable operations, the Corporation’s current business plan involves identifying the sources of sufficient capital to fund construction and start-up, obtaining a positive construction decision from the Board of Directors, successful construction of a mill and the start of mining and milling operations.
Many permits and authorizations must be obtained in order to successfully execute this plan, and each permit or authorization may not be granted on a timely basis, or may not be granted at all. Obtaining permits may become more onerous as a result of changes to political parties in power at the federal, provincial and local level, including changes within Indigenous leadership. Certain non-governmental organizations actively seek to delay the granting of mining permits, or challenge them after they have been granted. In addition, there is an increasing sensitivity to the handling and storage of mine waste tailings. The Corporation is committed to actively engaging with and consulting relevant Indigenous groups, some of whom may not be supportive of mining development in their traditional territory, and who may seek to temporarily delay or permanently prevent the development of the mine. Delays in construction resulting from the factors described above or otherwise typically cause costs to increase.
The start-up and integration of all of the systems in a mill facility is a complicated undertaking. In addition, models of mineralization may not be accurate. Metallurgy can also vary throughout the ore body causing challenges in extracting and concentrating sufficient metal, especially during the start-up period. Delays in achieving commercial production during the start-up period may result in delayed revenues.
Because the Corporation does not have positive operating cash flow, where revenue delays or cost overruns are significant, the Corporation may be forced to raise additional capital in order to achieve commercial production. Financial markets typically adjust a company’s valuation downward when a company is forced to raise additional capital during construction in order to achieve commercial production. In extreme cases, the Corporation may be unable to raise additional capital which may result in equity becoming valueless and the loss of an investor’s entire investment.
Our business may be affected by global economic conditions.
Global financial markets have at various times in the past, and may, in the future, experience extreme volatility impacting many industries, including the mining industry. Global financial conditions remain subject to sudden and rapid destabilizations in response to economic shocks, including rising inflation, related government interventions, and global supply-chain disruption. A sudden or prolonged slowdown in the financial markets or other economic conditions, including but not limited to, fuel and energy costs, potential changes to trade policy, including tariff and import/export regulations, consumer spending, employment rates, business conditions, inflation, consumer debt levels, lack of available credit, the state of the financial markets, rising interest rates and tax rates, may adversely affect our growth and potential future profitability.
Future economic shocks may be precipitated by a number of causes, including, but not limited to, a rise in the price of oil and other commodities, the volatility of metal prices, rising inflation and interest rates, geopolitical instability, war, invasions or other armed conflicts, terrorism, pandemics, epidemics or other health
concerns, the devaluation and volatility of global stock markets, tariffs and natural disasters. Any sudden or rapid destabilization of global economic conditions could impact our ability to obtain equity or debt financing in the future on terms favourable to us or at all. In such an event, our operations and financial condition could be adversely impacted.
The Corporation has a negative operating cash flow and may continue to have a negative operating cash flow for the foreseeable future.
The Corporation is a development and construction stage company in respect to its mineral property interests and has not generated cash flow from operations. The Corporation is devoting significant resources to the development and construction of its properties, however there can be no assurance that it will generate positive cash flow from operations in the future. The Corporation currently has negative cash flow from operating activities and expects to continue to incur negative operating cash flow and losses until such time as it achieves commercial production.
Risks Related to Our Securities
We will have broad discretion in the use of the net proceeds.
While information regarding the intended use of proceeds from the sale of our securities will be described in the applicable Prospectus Supplement, we retain broad discretion over the use of the net proceeds from a prospectus offering. We have identified certain forward-looking plans and objectives for the proceeds, but our ability to achieve such plans and objectives could change as a result of a number of internal and external factors, such as the impact of pandemics or other health crises on society and our operations, the impact that cross-border trade tariffs may have on the supply of raw materials required for the construction and development of the Eskay Creek Project, the impact that results from continued exploration and evaluation activities may have on our future evaluation and development plans and anticipated costs and timelines, the prices (and expected future prices) of gold and silver, access to sufficient capital and resources, and conflicts in Europe and the Middle East. Because of the number and variability of factors that will determine our use of such proceeds, our ultimate use might vary substantially from our planned use. You may not agree with how we allocate or spend the proceeds from the sale of the Securities. We may pursue acquisitions, collaborations or other opportunities that do not result in an increase in the market value of our securities, including the market value of our Common Shares, and that may result in or increase our losses from operations.
Investors may lose their entire investment.
An investment in Securities is speculative and may result in the loss of an investor’s entire investment. Only potential investors who are experienced in high risk investments and who can afford to lose their entire investment should consider an investment in the Corporation.
Future sales or issuances of debt or equity securities could decrease the value of any existing Common Shares, dilute investors’ voting power and reduce our earnings per share.
We are authorized to issue an unlimited number of Common Shares. We may sell additional equity securities (including through the sale of securities convertible into Common Shares) and may issue additional debt or equity securities to finance our operations, exploration, development, acquisitions or other projects. However, we cannot predict the size of future sales and issuances of debt or equity securities or the effect, if any, that future sales and issuances of debt or equity securities will have on the market price of the Common Shares. Sales or issuances of a substantial number of equity securities, or the perception that such sales could occur, may adversely affect prevailing market prices for the Common Shares. With any additional sale or issuance of equity securities, investors will suffer dilution of their voting power and may experience dilution of our anticipated eventual earnings per share.
Additional issuances of Securities may involve the issuance of a significant number of our Common Shares at prices less than the current market price for the Common Shares. Any transaction involving the issuance of previously authorized but unissued Common Shares, or securities convertible into Common Shares, would result in dilution, possibly substantial, to security holders. Sales of substantial amounts of Securities by us or our existing shareholders, or the availability of such securities for sale, could adversely
affect the prevailing market prices for Securities and, in the case of sales of Securities from treasury, dilute investors’ earnings per share. Sales of our Common Shares by shareholders might also make it more difficult for us to sell equity securities at a time and price that we deem appropriate. Exercises of presently outstanding share options, Warrants or settlement of incentive shares in Common Shares may also result in dilution to security holders. A decline in the market prices of our securities could impair our ability to raise additional capital through the sale of Securities should we desire to do so.
Our Common Shares are subject to various factors that have historically made share prices volatile.
The market price of the Common Shares may be subject to large fluctuations, which may result in losses to investors.
The market price of our securities have experienced wide fluctuations which may not necessarily be related to the financial condition, operating performance, underlying asset values or prospects of Skeena. These factors include macroeconomic developments in North America and globally, market perceptions of the attractiveness of particular industries and volatile trading due to unpredictable general market or trading sentiments.
The market price of the Common Shares is also likely to increase or decrease in response to a number of events and factors, including: our operating performance and the performance of competitors and other similar companies; volatility in metal prices; the arrival or departure of key personnel; the number of Common Shares to be publicly traded after an offering pursuant to any Prospectus Supplement; the public’s reaction to our press releases, material change reports, other public announcements and our filings with the various securities regulatory authorities; changes in earnings estimates or recommendations by research analysts who track the Common Shares or the shares of other companies in the resource sector; changes in general economic and/or political conditions; acquisitions, strategic alliances or joint ventures involving us or our competitors; and the factors listed under the heading “Caution Regarding Forward-Looking Information”.
The market price of the Common Shares may be affected by many other variables which are not directly related to our success and are, therefore, not within our control, including other developments that affect the market for all resource sector securities, the breadth of the public market for the Common Shares and the attractiveness of alternative investments.
Financial markets have recently experienced significant price and volume fluctuations that have particularly affected the market prices of equity securities of companies and that have often been unrelated to the operating performance, underlying asset values or prospects of such companies. Accordingly, the market price of the Common Shares may decline even if our operating results, underlying asset values or prospects have not changed. Additionally, these factors, as well as other related factors, may cause decreases in asset values that are deemed to be other than temporary, which may result in impairment losses. There can be no assurance that continuing fluctuations in price and volume will not occur. If such increased levels of volatility and market turmoil continue, our operations could be adversely impacted, and the trading price of the Common Shares may be materially adversely affected.
The market price of the Common Shares could decline as a result of future issuances or sales of our securities, which could result in insufficient liquidity.
The market price of the Common Shares could decline as a result of issuances of securities by us or sales by our existing shareholders of Common Shares in the market, or the perception that these sales could occur. The issuance of Common Shares upon the exercise of our outstanding stock options may also reduce the market price of the Common Shares. Additional Common Shares and stock options may be issued in the future. A decrease in the market price of the Common Shares could adversely affect the liquidity of the Common Shares on the TSX and NYSE. Our shareholders may be unable, as a result, to sell significant quantities of the Common Shares into the public trading markets. We may not, as a result, have sufficient liquidity to meet the continued listing requirements of the TSX and the NYSE. Sales of the Common Shares by shareholders might also make it more difficult for us to sell equity or debt securities at a time and price that we deem appropriate, which may have a material adverse effect on our business, financial conditions and results of operations.
No Guarantee of an active liquid market for the Common Shares.
There is no guarantee that an active trading market for the Common Shares will be maintained on the TSX and NYSE. Investors may not be able to sell their Common Shares quickly, at all, or at the latest market price if trading in the securities is not active.
U.S. investors may find it difficult to enforce U.S. judgments against us.
We are incorporated under the laws of British Columbia, Canada and the many of our directors and officers are not residents of the United States. Because all or a substantial portion of our assets and the assets of these persons are located outside of the United States, it may be difficult for U.S. investors to effect service of process within the United States upon us or upon such persons who are not residents of the United States, or to realize in the United States upon judgments of U.S. courts predicated upon civil liabilities under U.S. securities laws. A judgment of a U.S. court predicated solely upon such civil liabilities may be enforceable in Canada by a Canadian court if the U.S. court in which the judgment was obtained had jurisdiction, as determined by the Canadian court, in the matter. There is substantial doubt whether an original action could be brought successfully in Canada against any of such persons or us predicated solely upon such civil liabilities.
We believe that we are likely a passive foreign investment company, which may subject U.S. holders to adverse U.S. federal income tax consequences.
Prospective U.S. investors should be aware that they could be subject to certain adverse U.S. federal income tax consequences in the event that we are classified as a “passive foreign investment company” (or a “PFIC”) for U.S. federal income tax purposes. The determination of whether a corporation is a PFIC for a taxable year depends, in part, on the application of complex U.S. federal income tax rules, which are subject to differing interpretations, and the determination will depend on the composition of the corporation’s income, expenses and assets from time to time and the nature of the activities performed by our officers and employees. We believe that we have likely been classified as a PFIC for prior taxable years and likely will continue to be classified as a PFIC for the current taxable year and the foreseeable future. Prospective investors should consult their own tax advisors regarding the likelihood and consequences of us being treated as a PFIC for U.S. federal income tax purposes, including the advisability of making certain elections that may mitigate certain possible adverse U.S. federal income tax consequences that may result in an inclusion in gross income without receipt of such income.
We have never paid, and do not currently anticipate paying, dividends.
We have not paid any dividends on the Common Shares since incorporation and do not anticipate paying dividends in the immediate future. The payment of future dividends, if any, will be reviewed periodically by the Board of Directors and will depend upon, among other things, conditions then existing including earnings, financial conditions, cash on hand, financial requirements to fund our commercial activities, development and growth, and other factors that the Board of Directors may consider appropriate in the circumstances.
Forward-looking information may prove to be inaccurate.
Investors should not place undue reliance on forward-looking information. By its nature, forward-looking information involves numerous assumptions, known and unknown risks and uncertainties, of both general and specific nature, that could cause actual results to differ materially from those suggested by the forward-looking information or contribute to the possibility that predictions, forecasts or projections will prove to be materially inaccurate. Additional information on the risks, assumptions and uncertainties can be found in this under the heading “Caution Regarding Forward-Looking Information”.
Our business strategies may require additional financing in the future and such additional financing may not be available on acceptable terms, if at all.
The Project Financing Package provides the Corporation with more available capital than the remaining estimated expenditures required to bring the Eskay Creek Project back into production. However, estimates are necessarily uncertain and, should any of the assumptions underlying such estimates not prove to be accurate, the Corporation may require additional financing. In addition, our ability to access the remaining
tranches under the Gold Stream Arrangement is subject to us meeting certain customary conditions, including but not limited to, incurring certain aggregate expenditures for the construction and development of Eskay Creek. In addition, the terms of the Senior Secured Term Loan require us to satisfy various affirmative and negative covenants. Failure to comply with these covenants may affect future utilizations under the Senior Secured Term Loan or lead to an event of default, which could cause the relevant lender to declare the Corporation in default on its existing obligations. If such an event of default were declared and remained uncured, all borrowed amounts under the Senior Secured Term Loan could become due and payable immediately.
In the event the Project Financing Package is not sufficient, or not available, to fund the continued development the Eskay Creek Project or if the Corporation pursues additional corporate opportunities, the Corporation may require additional financing. The failure to raise or procure such additional funds or the failure to achieve positive cash flow could result in the delay or indefinite postponement of current business objectives. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, will be on terms acceptable to the Corporation. If additional funds are raised by offering equity securities, existing shareholders could suffer significant dilution. Any debt financing secured in the future could involve the granting of security against assets of the Corporation and also contain restrictive covenants relating to capital raising activities and other financial and operational matters, which may make it more difficult for the Corporation to obtain additional capital and to pursue business opportunities, including potential acquisitions.
As a foreign private issuer, we are subject to different U.S. securities laws and rules than a domestic U.S. issuer, which may limit the information publicly available to our shareholders.
We are a “foreign private issuer”, as such term is defined in Rule 405 under the U.S. Securities Act, and not subject to the same requirements that are imposed upon U.S. domestic issuers by the SEC. Under the U.S. Exchange Act, we are subject to reporting obligations that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting companies. As a result, we do not file the same reports that a U.S. domestic issuer would file with the SEC, although we are required to file or furnish to the SEC the continuous disclosure documents that we are required to file in Canada under Canadian securities laws. In addition, our officers, directors, and principal shareholders are exempt from the reporting and “short swing” profit recovery provisions of Section 16 of the U.S. Exchange Act. Therefore, our shareholders may not know on as timely a basis when our officers, directors and principal shareholders purchase or sell shares, as the reporting deadlines under the corresponding Canadian insider reporting requirements are longer.
As a foreign private issuer, we are exempt from the rules and regulations under the U.S. Exchange Act related to the furnishing and content of proxy statements. We are also exempt from Regulation FD, which prohibits issuers from making selective disclosures of material non-public information. While we will comply with the corresponding requirements relating to proxy statements and disclosure of material non-public information under Canadian securities laws, these requirements differ from those under the U.S. Exchange Act and Regulation FD and shareholders should not expect to receive the same information at the same time as such information is provided by U.S. domestic companies. In addition, we are not required under the U.S. Exchange Act to file annual or quarterly reports with the SEC as promptly as U.S. domestic companies whose securities are registered under the U.S. Exchange Act.
In addition, as a foreign private issuer, we have the option to follow certain Canadian corporate governance practices, except to the extent that such laws would be contrary to U.S. securities laws, and provided that we disclose the requirements we are not following and describe the Canadian practices we follow instead. We currently rely on this exemption with respect to requirements regarding the quorum for any meeting of our shareholders. We may in the future elect to follow home country practices in Canada with regard to other matters. As a result, our shareholders may not have the same protections afforded to shareholders of U.S. domestic companies that are subject to all U.S. corporate governance requirements.
There is currently no market through which the Securities, other than the Common Shares, may be sold.
Other than for Common Shares, there is no market through which the Securities may be sold and purchasers may not be able to resell such Securities purchased under this Prospectus and any Prospectus Supplement. There can be no assurance that an active trading market will develop for Debt Securities,
Warrants, Subscription Receipts, Rights, Options or Units after an offering or, if developed, that such market will be sustained. This may affect the pricing of such Securities in the secondary market, the transparency and availability of trading prices, the liquidity of the Securities, and the extent of issuer regulation.
The public offering prices of the Securities may be determined by negotiation between Skeena and underwriters, dealers, agents or other purchasers 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”.
Public companies are subject to securities class action litigation risk.
In the past, securities class action litigation has often been brought against a company following a decline in the market price of its securities. If the Corporation faces such litigation, it could result in substantial costs and a diversion of management’s attention and resources, which could materially harm its business.
The Debt Securities will be unsecured and will rank equally in right of payment with all of our other future unsecured debt.
Unless otherwise indicated in the applicable Prospectus Supplement, the Debt Securities will be unsecured and will rank equally in right of payment with all of our other existing and future unsecured debt. The Debt Securities will be effectively subordinated to all of our existing and future secured debt to the extent of the assets securing such debt. If we are involved in any bankruptcy, dissolution, liquidation or reorganization, the secured debt holders would, to the extent of the value of the assets securing the secured debt, be paid before the holders of unsecured debt securities, including the Debt Securities. In that event, a holder of Debt Securities may not be able to recover any principal or interest due to it under the Debt Securities. See “Description of Debt Securities”.
AGENT FOR SERVICE OF PROCESS
Certain directors of the Corporation, namely Walter Coles Jr., Executive Chairman, Greg Beard, Director, and Nathalie Sajous, Director, reside outside of Canada. Each has appointed the following agent for service of process in Canada:
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Name of Person
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Name and Address of Agent
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Walter Coles Jr., Greg Beard and Nathalie Sajous
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Blakes Vancouver Services Inc.
c/o Blake, Cassels & Graydon LLP
Suite 3500, 1133 Melville Street
Vancouver, British Columbia, V6E 4E5, Canada
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Purchasers are advised that it may not be possible for investors to enforce judgments obtained in Canada against any person or company that is incorporated, continued or otherwise organized under the laws of a foreign jurisdiction or resides outside of Canada, even if the party has appointed an agent for service of process.
LEGAL MATTERS
Certain legal matters related to the Securities offered by this Prospectus will be passed upon on behalf of the Corporation by Blake, Cassels & Graydon LLP, with respect to matters of Canadian law, and Skadden, Arps, Slate, Meagher & Flom LLP, with respect to matters of United States law. As of the date of this Prospectus, the partners and associates of Blake, Cassels & Graydon LLP as a group beneficially own, directly or indirectly, less than 1% of the issued and outstanding securities of the Corporation. In addition, certain legal matters in connection with any offering of Securities may be passed upon for any underwriters, dealers or agents by counsel to be designated at the time of the offering by such underwriters, dealers or agents.
INTEREST OF EXPERTS
Certain technical information relating to the Eskay Creek Project contained within this Prospectus or incorporated by reference in this Prospectus is based on the technical report entitled “Eskay Creek Project,
British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023 prepared by Ben Adaszynski, P.Eng., Sedgman Canada Limited, Terre Lane, MMSA QP, Global Resource Engineering, Dr. Hamid Samari, MMSA QP, Global Resource Engineering, Jim Fogarty, P.Eng., Knight Piésold Ltd., Ian Stilwell, P.Eng., BGC Engineering Inc., Rolf Schmitt, P.Geo., ERM Consultants Canada Ltd., A.J. MacDonald, P.Eng., Integrated Sustainability Ltd., David Baldwin, P.Eng., Carisbrooke Consulting Inc. and Steven Andrew Baisley, P.Geo., M.A. O’Kane Consultants Inc.
All other scientific and technical information in this Prospectus Supplement, and in the AIF and the Annual MD&A which are incorporated by reference herein, has been reviewed and approved by Paul Geddes, Senior Vice President, Exploration & Resource Development, who is an employee of the Corporation and who is a “qualified person” for the purposes of NI 43-101.
As at the date of this Prospectus, to the best knowledge of the Corporation, the aforementioned persons, collectively, held less than 1% of the securities of the Corporation when they prepared or certified a report, valuation, statement or opinion, as applicable, referred to above and as at the date of this Prospectus, and they did not receive any direct or indirect interest in any securities of the Corporation or of any associate or affiliate of the Corporation in connection with the preparation or certification of such report, valuation, statement or opinion, as applicable.
As at the date of this Prospectus, other than Paul Geddes, Senior Vice President, Exploration & Resource Development, none of the aforementioned persons is or is currently expected to be elected, appointed or employed as a director, officer or employee of Skeena or of any associate or affiliate of Skeena.
AUDITORS, TRANSFER AGENT AND REGISTRAR
The auditor of the Corporation is KPMG LLP, Chartered Professional Accountants, having an address at Suite 1100 – 777 Dunsmuir Street, PO Box 10426 Pacific Centre, Vancouver, British Columbia, Canada, V7Y 1K3. KPMG LLP have confirmed with respect to the Corporation that they are independent within the meaning of the relevant rules and related interpretations prescribed by the relevant professional bodies in Canada and any applicable legislation or regulation and also that they are independent accountants with respect to Skeena under all relevant U.S. professional and regulatory standards.
As of the date of this Prospectus, the Corporation’s transfer agent and registrar is Computershare Investor Services Inc. at its offices in Vancouver, British Columbia.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file with the securities commission or authority in each of the applicable provinces and territories of Canada annual and quarterly reports, material change reports and other information. In addition, we are subject to the informational requirements of the U.S. Exchange Act, and, in accordance with the U.S. Exchange Act, are also required to file reports with, and furnish other information to, the SEC. Under the MJDS, these reports and other information (including financial information) may be prepared in accordance with the disclosure requirements of Canada, which differ in certain respects from those in the United States. As a foreign private issuer, we are exempt from the rules under the U.S. Exchange Act prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the U.S. Exchange Act. In addition, we are not required to publish financial statements as promptly as U.S. companies.
You may read any document we file with or furnish to the securities commissions and authorities of the applicable provinces and territories of Canada through SEDAR+ and any document we file with, or furnish to, the SEC are electronically available on the SEC’s EDGAR website, and may be accessed at www.sec.gov. Please note that the SEC’s EDGAR website and the website containing Canadian securities regulatory filings are included in this Prospectus and any applicable Prospectus Supplement as inactive textual references only. The information contained on such websites is not incorporated by reference in this Prospectus and any applicable Prospectus Supplement and should not be considered part of this Prospectus or any applicable Prospectus Supplement, except as explicitly described in the section titled “Documents Incorporated by Reference”.
ENFORCEABILITY OF CIVIL LIABILITIES
We are a company incorporated under the BCBCA. A number of our directors and most of our officers and the experts named in this Prospectus, are residents of Canada or otherwise reside outside the United States, and all or a substantial portion of their assets may be, and a substantial portion of the Corporation’s assets are, located outside the United States. We have appointed an agent for service of process in the United States (as set forth below), but it may be difficult for holders of Securities who reside in the United States to effect service within the United States upon those directors, officers and experts who are not residents of the United States. It may also be difficult for holders of Securities who reside in the United States to realize in the United States upon judgments of courts of the United States predicated upon our civil liability and the civil liability of our directors, officers and experts under the United States federal securities laws. We have been advised that a judgment of a U.S. court predicated solely upon civil liability under U.S. federal securities laws or the securities or “blue sky” laws of any state within the United States, would likely be enforceable in Canada if the United States court in which the judgment was obtained has a basis for jurisdiction in the matter that would be recognized by a Canadian court for the same purposes. We have also been advised, however, that there is substantial doubt whether an action could be brought in Canada in the first instance on the basis of the liability predicated solely upon U.S. federal securities laws.
We will file with the SEC, concurrently with our 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, we will appoint CT Corporation System, as our 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 or involving us in a U.S. court arising out of or related to or concerning the offering of Securities under this Prospectus.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS
Indemnification of Directors and Officers
The Registrant (“we” or “us”) is subject to the provisions of the Business Corporations Act (British Columbia) (the “BCBCA”).
Under Section 160 of the BCBCA, an individual who:
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is or was a director or officer of the Registrant;
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is or was a director or officer of another corporation at a time when the corporation is or was an affiliate of the Registrant, or at the request of the Registrant; or
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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 including, subject to limited exceptions, the heirs and personal or other legal representatives of that individual (collectively, an “eligible party”), may be indemnified by the Registrant against a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, a proceeding (an “eligible penalty”) in which, 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) the eligible party is or may be joined as a party, or (b) the eligible party is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding (“eligible proceeding”) to which the eligible party is or may be liable. Section 160 of the BCBCA also permits the Registrant to pay the expenses actually and reasonably incurred by an eligible party after the final disposition of the eligible proceeding.
Under Section 161 of the BCBCA, 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 BCBCA and subject to Section 163 of the BCBCA, 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 decided that the payment of expenses is prohibited by Section 163, the eligible party will repay the amounts advanced.
Under Section 163 of the BCBCA, the Registrant must not indemnify an eligible party against eligible penalties to which the eligible party is or may be liable or pay the expenses of an eligible party in respect of that proceeding under Sections 160, 161 or 162 of the BCBCA, as the case may be, if any of the following circumstances apply:
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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 articles;
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if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, the Registrant is prohibited from giving the indemnity or paying the expenses by its articles;
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if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of the Registrant or the associated corporation, as the case may be; or
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in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful.
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 not either indemnify the eligible party against eligible penalties to which the eligible party is or may be liable in respect to the proceeding, or, after the final disposition of an eligible proceeding, pay the expenses of the eligible party under Sections 160, 161 or 162 of the BCBCA, as the case may be, in respect of the proceeding.
Under Section 164 of the BCBCA, and despite any other provision of Part 5, Division 5 of the BCBCA and whether or not payment of expenses or indemnification has been sought, authorized or declined under Part 5, Division 5 of the BCBCA, the Supreme Court of British Columbia may, on application of the Registrant or an eligible party, do one or more of the following things:
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order the Registrant to indemnify an eligible party against any liability incurred by the eligible party in respect of an eligible proceeding;
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order the Registrant to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding;
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order the enforcement of, or payment under, an agreement of indemnification entered into by the Registrant;
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order the Registrant to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under Section 164 of the BCBCA; or
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make any other order the court considers appropriate.
Section 165 of the BCBCA provides that 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 foregoing description is qualified in its entirety by reference to the BCBCA.
Under the articles of the Registrant, subject to the provisions of the BCBCA, 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 the Registrant’s articles.
Under the articles of the Registrant, subject to provisions of the BCBCA, the Registrant may agree to indemnify and may indemnify any person. The Registrant has entered into indemnity agreements with all of the Registrant’s directors and officers.
Pursuant to the articles of the Registrant, the failure of a director, alternate director or officer of the Registrant to comply with the BCBCA or the Registrant’s articles does not invalidate any indemnity to which he or she is entitled under the Registrant’s articles.
Under the articles of the Registrant, the Registrant has purchased directors’ and officers’ liability insurance that, under certain circumstances, insures its directors and officers against the costs of defense, settlement, or payment of a judgment.
Insofar as indemnification for liabilities arising under the Securities 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 (the “SEC”) such indemnification is against public policy as expressed in the Securities 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 SEC staff, and to furnish promptly, when requested to do so by the SEC staff, information relating to the securities registered pursuant to this Form F-10 or to transactions in such securities.
Item 2. Consent to Service of Process
Concurrently with the filing of this Registration Statement on Form F-10, the Registrant is filing with the SEC a written irrevocable consent and power of attorney on Form F-X.
Any change to the name or address of the Registrant’s agent for service shall be communicated promptly to the SEC by amendment to the Form F-X referencing the file number of this Registration Statement.
Exhibits
The following exhibits have been filed as part of the Registration Statement:
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Exhibit No.
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Description
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4.1
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4.2
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4.3
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4.4
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4.5
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4.6
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4.7
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4.8
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5.1
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5.2
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5.3
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5.4
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5.5
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5.6
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5.7
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5.8
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5.9
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5.10
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6.1
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7.1
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107
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-10 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vancouver, Province of British Columbia, Country of Canada, on March 19, 2025.
SKEENA RESOURCES LTD.
By:
/s/ Andrew MacRitchie
Name:
Andrew MacRitchie
Title:
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Randy Reichert and Andrew MacRitchie, and each of them, with full power to act without the other, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post effective amendments, and supplements to this Registration Statement on Form F-10, and registration statements filed pursuant to Rule 429 under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Randy Reichert
Randy Reichert
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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March 19, 2025
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/s/ Andrew MacRitchie
Andrew MacRitchie
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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March 19, 2025
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/s/ Walter Coles Jr.
Walter Coles Jr.
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Director and Executive Chairman
of the Board of Directors
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March 19, 2025
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/s/ Suki Gill
Suki Gill
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Director
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March 19, 2025
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/s/ Greg Beard
Greg Beard
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Director
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March 19, 2025
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/s/ Craig Parry
Craig Parry
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Director
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March 19, 2025
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/s/ Nathalie Sajous
Nathalie Sajous
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Director
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March 19, 2025
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act, this Registration Statement on Form F-10 has been signed by the undersigned, solely in its capacity as the duly authorized representative of the Registrant in the United States, on March 19, 2025.
PUGLISI & ASSOCIATES
(Authorized Representative in the United States)
By:
/s/ Donald J. Puglisi
Name:
Donald J. Puglisi
Title:
Managing Director
Exhibit 5.1
Consent of Independent Registered
Public Accounting Firm
The Board of Directors
Skeena Resources Limited
We consent to the use of our report dated March 28, 2024,
on the consolidated financial statements of Skeena Resources Limited (“the Entity”), which comprise the consolidated statements
of financial position as at December 31, 2023 and December 31, 2022, the related consolidated statements of loss and comprehensive loss,
changes in shareholders’ equity and cash flows for each of the years in the two-year period ended December 31, 2023, and the related
notes, which is incorporated by reference in the Registration Statement on Form F-10 dated March 19, 2025 of the Entity.
//s// KPMG LLP
Chartered Professional Accountants
March 19, 2025
Vancouver, Canada
Exhibit 5.2
CONSENT OF SEDGMAN
CANADA LIMITED
The undersigned
hereby consents to the use of the undersigned’s name and information derived from the Technical Report titled “Eskay Creek
Project, British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14,
2023, which is included in, or incorporated by reference into, this Registration Statement on Form F-10, being filed with the United
States Securities and Exchange Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
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/s/
Ben Adaszynski |
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Name: Ben Adaszynski, P.Eng. |
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Title: Manager, Project
Development |
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Sedgman Canada Limited |
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| Date: March 19, 2025 |
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Exhibit 5.3
CONSENT OF GLOBAL
RESOURCE ENGINEERING, LTD.
The undersigned
hereby consents to the use of the undersigned’s name and information derived from the Technical Report titled “Eskay Creek
Project, British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14,
2023, which is included in, or incorporated by reference into, this Registration Statement on Form F-10, being filed with the United
States Securities and Exchange Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
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/s/
Terre Lane |
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Name: Terre Lane, MMSA QP |
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Title: Principal Mining Engineer |
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Global Resource Engineering, Ltd.. |
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| Date: March 19, 2025 |
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Exhibit 5.4
CONSENT OF KNIGHT
PIÉSOLD LTD.
The undersigned
hereby consents to the use of the undersigned’s name and information derived from the Technical Report titled “Eskay Creek
Project, British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023,
which is included in, or incorporated by reference into, this Registration Statement on Form F-10, being filed with the United States
Securities and Exchange Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
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/s/
Jim Fogarty |
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Name: Jim Fogarty, P.Eng. |
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Title: Senior Engineer |
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Knight Piésold Ltd. |
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| Date: March 19, 2025 |
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Exhibit 5.5
CONSENT OF BGC
ENGINEERING INC.
The undersigned
hereby consents to the use of the undersigned’s name and information derived from the Technical Report titled “Eskay Creek
Project, British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023,
which is included in, or incorporated by reference into, this Registration Statement on Form F-10, being filed with the United States
Securities and Exchange Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
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/s/ Ian Stilwell |
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Name: Ian Stilwell, P.Eng. |
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Title: Principal Geotechnical Engineer |
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BGC Engineering Inc. |
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| Date: March 19, 2025 |
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Exhibit 5.6
CONSENT OF ERM CONSULTANTS CANADA LIMITED
The undersigned hereby consents to the use of
the undersigned’s name and information derived from the Technical Report titled “Eskay Creek Project, British Columbia, NI
43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023, which is included in, or incorporated
by reference into, this Registration Statement on Form F-10, being filed with the United States Securities and Exchange Commission and
any amendments and exhibits thereto, of Skeena Resources Limited.
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/s/ Rolf Schmitt |
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Name: Rolf Schmitt, P.Geo. |
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Title: Technical Director – Permitting |
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ERM Consultants Canada Limited |
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| Date: March 19, 2025 |
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Exhibit 5.7
CONSENT OF INTEGRATED SUSTAINABILITY LTD.
The undersigned hereby consents to the use of
the undersigned’s name and information derived from the Technical Report titled “Eskay Creek Project, British Columbia, NI
43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023, which is included in, or
incorporated by reference into, this Registration Statement on Form F-10, being filed with the United States Securities and Exchange
Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
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/s/ A.J. MacDonald |
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Name: A.J. MacDonald, P.Eng. |
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Title: Vice President Engineering / Senior Technical Specialist |
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Integrated Sustainability Ltd. |
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| Date: March 19, 2025 |
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Exhibit 5.8
CONSENT OF CARISBROOKE
CONSULTING INC.
The undersigned
hereby consents to the use of the undersigned’s name and information derived from the Technical Report titled “Eskay Creek
Project, British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023,
which is included in, or incorporated by reference into, this Registration Statement on Form F-10, being filed with the United States
Securities and Exchange Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
| |
/s/ David Baldwin |
| |
Name: David Baldwin, P.Eng. |
| |
Title: Principal Engineer |
| |
Carisbrooke Consulting Inc. |
| |
|
| Date: March 19, 2025 |
|
Exhibit 5.9
CONSENT OF M.A.
O’KANE CONSULTANTS INC.
The undersigned
hereby consents to the use of the undersigned’s name and information derived from the Technical Report titled “Eskay Creek
Project, British Columbia, NI 43-101 Technical Report on Updated Feasibility Study” with an effective date of November 14, 2023,
which is included in, or incorporated by reference into, this Registration Statement on Form F-10, being filed with the United States
Securities and Exchange Commission and any amendments and exhibits thereto, of Skeena Resources Limited.
| |
/s/ Steven Andrew Baisley |
| |
Name: Steven Andrew Baisley, P.Geo. |
| |
Title: Senior Geoscientist |
| |
M.A. O’Kane Consultants Inc. |
| |
|
| Date: March 19, 2025 |
|
Exhibit 5.10
CONSENT OF PAUL
GEDDES
The undersigned
hereby consents to the use of the undersigned’s name and the technical and scientific information which is included in, or incorporated
by reference into, this Registration Statement on Form F-10, being filed with the United States Securities and Exchange Commission and
any amendments and exhibits thereto, of Skeena Resources Limited.
| |
/s/ Paul Geddes |
| |
Name: Paul Geddes, P.Geo. |
| |
|
| Date: March 19, 2025 |
|
Exhibit 7.1
SKEENA
RESOURCES LIMITED,
as Issuer
AND
[___]
as Trustee
Indenture
Dated as of [___]
Skeena Resources Limited
Reconciliation
and tie between Trust Indenture Act
of 1939 and Indenture, dated as of [___]
|
Trust Indenture
Act Section |
|
Indenture Section |
| |
|
|
| § 310(a)(1) |
|
6.7 |
| (a)(2) |
|
6.7 |
| (b) |
|
6.8 |
| § 312(b) |
|
7.1 |
| (c) |
|
7.1 |
| § 313(a) |
|
7.2 |
| (b)(1) |
|
7.2 |
| (b)(2) |
|
7.2 |
| (c) |
|
7.2 |
| (d) |
|
7.2 |
| § 314(a) |
|
7.3 |
| (a)(4) |
|
9.4 |
| (c)(1) |
|
1.2 |
| (c)(2) |
|
1.2 |
| (e) |
|
1.2 |
| § 315(b) |
|
6.4 |
| § 316(a)(last sentence) |
|
1.1 (“Outstanding”) |
| (a)(1)(A) |
|
5.2, 5.2 |
| (a)(1)(B) |
|
5.13 |
| (b) |
|
5.8 |
| (c) |
|
1.4(e) |
| § 317(a)(1) |
|
5.3 |
| (a)(2) |
|
5.4 |
| (b) |
|
9.3 |
| § 318(a) |
|
1.11 |
TABLE OF CONTENTS1
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
| Section 1.1 |
Definitions |
1 |
| Section 1.2 |
Compliance Certificates and Opinions |
11 |
| Section 1.3 |
Form of Documents Delivered to Trustee |
11 |
| Section 1.4 |
Acts of Holders |
12 |
| Section 1.5 |
Notices, etc. to Trustee and Company |
13 |
| Section 1.6 |
Notice to Holders; Waiver |
14 |
| Section 1.7 |
Effect of Headings and Table of Contents |
15 |
| Section 1.8 |
Successors and Assigns |
15 |
| Section 1.9 |
Separability Clause |
15 |
| Section 1.10 |
Benefits of Indenture |
15 |
| Section 1.11 |
Governing Law |
15 |
| Section 1.12 |
Legal Holidays |
16 |
| Section 1.13 |
Agent for Service; Submission to Jurisdiction; Waiver of Immunities |
16 |
| Section 1.14 |
Conversion of Currency |
17 |
| Section 1.15 |
Currency Equivalent |
18 |
| Section 1.16 |
No Recourse Against Others |
18 |
| Section 1.17 |
Multiple Originals |
18 |
| Section 1.18 |
Conflict with Trust Indenture Act |
18 |
| Section 1.19 |
Force Majeure |
18 |
| Section 1.20 |
U.S.A. Patriot Act |
19 |
| Section 1.21 |
Execution in Counterparts; Electronic Execution |
19 |
| Section 1.22 |
Waiver of Jury Trial |
19 |
ARTICLE II
SECURITY FORMS
| Section 2.1 |
Forms Generally |
19 |
| Section 2.2 |
Form of Trustee’s Certificate of Authentication |
20 |
| Section 2.3 |
Securities Issuable in Global Form |
20 |
1
This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
ARTICLE III
THE SECURITIES
| Section 3.1 |
Amount Unlimited; Issuable in Series |
21 |
| Section 3.2 |
Denominations |
25 |
| Section 3.3 |
Execution, Authentication, Delivery and Dating |
25 |
| Section 3.4 |
Temporary Securities |
28 |
| Section 3.5 |
Registration, Registration of Transfer and Exchange |
30 |
| Section 3.6 |
Mutilated, Destroyed, Lost and Stolen Securities |
33 |
| Section 3.7 |
Payment of Principal and Interest; Interest Rights Preserved; Optional Interest Reset |
35 |
| Section 3.8 |
Optional Extension of Stated Maturity |
37 |
| Section 3.9 |
Persons Deemed Owners |
38 |
| Section 3.10 |
Cancellation |
39 |
| Section 3.11 |
Computation of Interest |
39 |
| Section 3.12 |
Currency and Manner of Payments in Respect of Securities |
39 |
| Section 3.13 |
Appointment and Resignation of Successor Exchange Rate Agent |
43 |
ARTICLE IV
SATISFACTION AND DISCHARGE
| Section 4.1 |
Satisfaction and Discharge of Indenture |
43 |
| Section 4.2 |
Application of Trust Money |
45 |
ARTICLE V
REMEDIES
| Section 5.1 |
Events of Default |
45 |
| Section 5.2 |
Acceleration of Maturity; Rescission and Annulment |
46 |
| Section 5.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
47 |
| Section 5.4 |
Trustee May File Proofs of Claim |
48 |
| Section 5.5 |
Trustee May Enforce Claims Without Possession of Securities |
49 |
| Section 5.6 |
Application of Money Collected |
49 |
| Section 5.7 |
Limitation on Suits |
50 |
| Section 5.8 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
50 |
| Section 5.9 |
Restoration of Rights and Remedies |
51 |
| Section 5.10 |
Rights and Remedies Cumulative |
51 |
| Section 5.11 |
Delay or Omission Not Waiver |
51 |
| Section 5.12 |
Control by Holders |
51 |
| Section 5.13 |
Waiver of Past Defaults |
52 |
| Section 5.14 |
Waiver of Stay or Extension Laws |
52 |
| Section 5.15 |
Undertaking for Costs |
52 |
ARTICLE VI
THE TRUSTEE
| Section 6.1 |
Notice of Defaults |
53 |
| Section 6.2 |
Certain Rights of Trustee |
53 |
| Section 6.3 |
Trustee Not Responsible for Recitals or Issuance of Securities |
55 |
| Section 6.4 |
May Hold Securitie |
55 |
| Section 6.5 |
Money Held in Trust |
55 |
| Section 6.6 |
Compensation and Reimbursement |
55 |
| Section 6.7 |
Corporate Trustee Required; Eligibility; Conflicting Interests |
56 |
| Section 6.8 |
Resignation and Removal; Appointment of Successor |
56 |
| Section 6.9 |
Acceptance of Appointment by Successor |
58 |
| Section 6.10 |
Merger, Conversion, Consolidation or Succession to Business |
59 |
| Section 6.11 |
Appointment of Authenticating Agent |
59 |
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
| Section 7.1 |
Disclosure of Names and Addresses of Holders |
61 |
| Section 7.2 |
Reports by Trustee |
61 |
| Section 7.3 |
Reports by the Company |
61 |
| Section 7.4 |
The Company to Furnish Trustee Names and Addresses of Holders |
62 |
ARTICLE VIII
SUPPLEMENTAL INDENTURES
| Section 8.1 |
Supplemental Indentures Without Consent of Holders |
62 |
| Section 8.2 |
Supplemental Indentures with Consent of Holders |
63 |
| Section 8.3 |
Execution of Supplemental Indentures |
64 |
| Section 8.4 |
Effect of Supplemental Indentures |
64 |
| Section 8.5 |
Conformity with Trust Indenture Act |
65 |
| Section 8.6 |
Reference in Securities to Supplemental Indentures |
65 |
| Section 8.7 |
Notice of Supplemental Indentures |
65 |
ARTICLE IX
COVENANTS
| Section 9.1 |
Payment of Principal, Premium, if any, and Interest |
65 |
| Section 9.2 |
Maintenance of Office or Agency |
65 |
| Section 9.3 |
Money for Securities Payments to Be Held in Trust |
67 |
| Section 9.4 |
Statement as to Compliance |
68 |
| Section 9.5 |
Waiver of Certain Covenants |
68 |
ARTICLE X
REDEMPTION OF SECURITIES
| Section 10.1 |
Applicability of Article |
69 |
| Section 10.2 |
Election to Redeem; Notice to Trustee |
69 |
| Section 10.3 |
Selection by Trustee of Securities to Be Redeemed |
69 |
| Section 10.4 |
Notice of Redemption |
70 |
| Section 10.5 |
Deposit of Redemption Price |
71 |
| Section 10.6 |
Securities Payable on Redemption Date |
71 |
| Section 10.7 |
Securities Redeemed in Part |
72 |
ARTICLE XI
SINKING FUNDS
| Section 11.1 |
Applicability of Article |
72 |
| Section 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
72 |
| Section 11.3 |
Redemption of Securities for Sinking Fund |
73 |
ARTICLE XII
REPAYMENT AT OPTION OF HOLDERS
| Section 12.1 |
Applicability of Article |
74 |
| Section 12.2 |
Repayment of Securities |
74 |
| Section 12.3 |
Exercise of Option |
75 |
| Section 12.4 |
When Securities Presented for Repayment Become Due and Payable |
75 |
| Section 12.5 |
Securities Repaid in Part |
76 |
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
| Section 13.1 |
Option to Effect Defeasance or Covenant Defeasance |
76 |
| Section 13.2 |
Defeasance and Discharge |
76 |
| Section 13.3 |
Covenant Defeasance |
77 |
| Section 13.4 |
Conditions to Defeasance or Covenant Defeasance |
77 |
| Section 13.5 |
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
79 |
| Section 13.6 |
Reinstatement |
80 |
ARTICLE XIV
MEETINGS OF HOLDERS OF SECURITIES
| Section 14.1 |
Purposes for Which Meetings May Be Called |
81 |
| Section 14.2 |
Call, Notice and Place of Meetings |
81 |
| Section 14.3 |
Persons Entitled to Vote at Meetings |
81 |
| Section 14.4 |
Quorum; Action |
81 |
| Section 14.5 |
Determination of Voting Rights; Conduct and Adjournment of Meetings |
83 |
| Section 14.6 |
Counting Votes and Recording Action of Meetings |
84 |
INDENTURE,
dated as of [___], among Skeena Resources Limited, a corporation organized under the laws of the Province of British Columbia (herein
called the “Company”), having its registered office at Suite 650, 1021 West Hastings Street, Vancouver, British Columbia,
V6E 0C3, Canada, and [___], having its office at [___], 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, bonds 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 benefit of all Holders
of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 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 IFRS (as defined herein); 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 1.4.
“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 6.11 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, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement
Act (Canada), the 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 any authorized officer 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 3.1, 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 3.11.
“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 3.4.
“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 3.12.
“Conversion
Date” has the meaning specified in Section 3.12(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.
“covenant
defeasance” has the meaning specified in Section 13.3.
“coupon”
means any interest coupon appertaining to a Bearer Security.
“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 3.7.
“defeasance”
has the meaning specified in Section 13.2.
“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 3.1 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 3.12(g).
“Dollar
Equivalent of the Foreign Currency” has the meaning specified in Section 3.12(f).
“Election
Date” has the meaning specified in Section 3.12(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 5.1.
“Exchange
Date” has the meaning specified in Section 3.4.
“Exchange
Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, a New York clearing house bank, designated pursuant to Section 3.13.
“Exchange
Rate Officer’s Certificate” means 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 3.2 in the relevant Currency),
payable with respect to a Security of any series on the basis of such Market Exchange Rate, signed by any authorized officer of the Company.
“Extension
Notice” has the meaning specified in Section 3.8.
“Extension
Period” has the meaning specified in Section 3.8.
“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 3.8.
“First
Currency” has the meaning specified in Section 1.15.
“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.
“IFRS”
means International Financial Reporting Standards as issued by the International Accounting Standards Board, as in effect from time to
time, and except as otherwise herein expressly provided, the term “IFRS” 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
generally accepted accounting principles.
“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 3.1; 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 3.1, 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, which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount Security.
“Interest
Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Judgment
Currency” has the meaning specified in Section 1.14.
“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 11.1.
“Market
Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 3.1, (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 3.1 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 3.1, 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 3.7.
“optional
sinking fund payment” has the meaning specified in Section 11.1.
“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 5.2.
“Original
Stated Maturity” has the meaning specified in Section 3.8.
“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 Section 13.2 and 13.3, 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 3.6 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 5.2,
(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 3.1, 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 3.1 and 9.2.
“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 3.6
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 1.14.
“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 3.1.
“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 1.14.
“Reset
Notice” has the meaning specified in Section 3.7.
“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 3.5.
“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 3.7.
“Specified
Amount” has the meaning specified in Section 3.12.
“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 3.8
(if applicable).
“Subsequent
Interest Period” has the meaning specified in Section 3.7.
“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 8.5.
“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 3.1, 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 3.1, an individual who
is a citizen or resident of the United States, a corporation or partnership (including any entity treated as a corporation or partnership
for United States federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the
District of Columbia, or an estate the income of which is subject to United States federal income taxation regardless of its source,
or a trust if (A) it is subject to the primary supervision of a court within the United States and one or more United States persons
have the authority to control all substantial decisions of the trust or (B) it has a valid election in effect under applicable Treasury
Regulations to be treated as a United States person.
“Valuation
Date” has the meaning specified in Section 3.12(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 1.2 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, except
in connection with the execution of this Indenture and the first supplemental indenture, if being executed in connection therewith, 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 9.4) 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 1.3 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 1.4 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 14.6.
(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 1.5 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 Suite 650,
1021 West Hastings Street, Vancouver, British Columbia, V6E 0C3, Canada, Attention: Corporate Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6 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 delivered (i) in the case of Securities in global form, pursuant
to the policies and procedures of the applicable depositary, and (ii) in the case of Securities in definitive form, in writing and
delivered by the Company (in the case of mail, by 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 e-mailed or 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 3.1, 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 1.7 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 1.8 Successors
and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its respective successors and assigns, whether so expressed or not.
All agreements of the Trustee, acting in any capacity, in this Indenture shall bind its successors.
Section 1.9 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 1.10 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 1.11 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 1.12 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 1.13 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 5.7, 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 1.5 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 1.14 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 indicative rate for purchases on the relevant date of the Required
Currency with the Judgment Currency, as reported on the “Exchange Rates” page of the website of Bank of Canada (or such
other means of reporting the Bank of Canada indicative rate as may be agreed upon by each of the parties to this Indenture) and includes
any premiums and costs of exchange payable.
Section 1.15 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 indicative rate as reported on the “Exchange Rates” page of the website of Bank of Canada (or such
other means of reporting the Bank of Canada indicative rate as may be agreed upon by each of the parties to this Indenture) on the date
of determination.
Section 1.16 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 1.17 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 1.18 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.
Section 1.19 Force
Majeure.
In no event shall the Trustee,
acting in any capacity hereunder, be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, epidemics,
pandemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee,
acting in any capacity hereunder, shall use reasonable efforts that are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
Section 1.20 U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions, and in order to help
fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person
or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will
provide the Trustee with such information as it may reasonably request as required in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
Section 1.21 Execution
in Counterparts; Electronic Execution.
This Indenture may be manually
or electronically executed in any number of counterparts (including by facsimile or electronic transmission (including .pdf file, .jpeg
file, Adobe Sign, or DocuSign)), each of which so executed shall be deemed to be an original, but all of such counterparts shall together
constitute but one and the same Indenture. Delivery of an executed counterpart signature page of this Indenture by facsimile or
any such electronic transmission shall be effective as delivery of a manually executed counterpart of this Indenture and shall have the
same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law. Any electronically
signed document delivered via e-mail from a person purporting to be an authorized officer shall be considered signed or executed by such
authorized officer on behalf of the applicable person and will be binding on all parties hereto to the same extent as if it were manually
executed.
Section 1.22 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.
ARTICLE II
SECURITY
FORMS
Section 2.1 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 3.3 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 3.1, 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 3.1.
Section 2.2 Form of
Trustee’s Certificate of Authentication.
Subject to Section 6.11,
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 |
| |
|
| |
By: |
|
| |
|
Authorized Officer |
Section 2.3 Securities
Issuable in Global Form.
If Securities of or within
a series are issuable in global form, as contemplated by Section 3.1, then, notwithstanding clause (8) of Section 3.1,
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 3.3 or Section 3.4. Subject to the provisions
of Section 3.3 and, if applicable, Section 3.4, 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 3.3 or Section 3.4 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement
or delivery or redelivery of any related Security in global form shall be in writing but need not comply with Section 1.2 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last
sentence of Section 3.3 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 1.2 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 3.3.
Notwithstanding the provisions
of Section 3.7, unless otherwise specified as contemplated by Section 3.1, 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 3.9 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 III
THE
SECURITIES
Section 3.1 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 or in the Board Resolutions or supplemental indenture establishing any series
that provides for subordination of such series to other series of Securities, 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 3.3, 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 such series from all other series of Securities, except
to the extent that Additional Securities of an existing series are being issued);
(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 3.4, 3.5, 3.6, 8.6, 10.7 or 12.5) 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 3.1 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 (and premium, if any)
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,
whether such interest shall be payable in cash or additional Securities of the same series or shall accrue and increase the aggregate
principal amount outstanding of such series, 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 1.5, 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 minimum 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 5.2 or the method by which such portion shall be determined;
(11) if
other than Dollars, the Foreign Currency in which payment of the principal of (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 3.12;
(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 3.12;
(14) the
designation of the initial Exchange Rate Agent, if any;
(15) the
applicability, if any, of Section 13.2 and/or 13.3 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 9.8) 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 3.5, 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 3.4;
(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) the
ranking of the Securities, including the relative degree, if any, to which the Securities of such series shall be subordinated to one
or more other series of Securities in right of payment, whether outstanding or not; and
(25) if
payment of the Securities of the series will be guaranteed by any other Person;
(26) 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
(27) 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 3.3)
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 3.2 Denominations.
The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by Section 3.1. 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 3.3 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 electronic 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 electronic 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 3.1, 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 3.4,
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 3.6, 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 valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’
rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and any coupons;
(d) that
all laws and requirements in respect of the execution and delivery by the Company of such Securities, any coupons, and of the supplemental
indentures, if any, have been complied with and that authentication and delivery of such Securities and any coupons and the execution
and delivery of the supplemental indenture, if any, by the Trustee will not violate the terms of the Indenture;
(e) that
the Company has the corporate power to issue such Securities and any coupons and has duly taken all necessary corporate action with respect
to such issuance; and
(f) that
the issuance of such Securities and any coupons will not contravene the articles of incorporation or amalgamation or by-laws of the Company,
or result in any violation of any of the terms or provisions of any law or regulation.
Notwithstanding the provisions
of Section 3.1 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 3.1 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 3.1.
No Security or coupon endorsed
thereon shall entitle the Holder to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual or
electronic 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 3.1 together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never entitle the Holder to the benefits of this Indenture.
Section 3.4 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 3.3. 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 3.1, 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 3.1); 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 3.3.
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 3.1), 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 3.1, 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 3.1), 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 3.1).
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 3.3 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 10.3.
Section 3.5 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 3.1, 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 3.3) set forth in the applicable Officers’
Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 3.1, 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 9.2, 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 3.1, 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 3.1 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 3.1, 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 3.1 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 3.4, 8.6, 10.7 or 12.5 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 10.3 or 11.3 and ending at the
close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the delivery 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 3.6 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 9.2, be payable only at an office or agency
located outside the United States and Canada and, unless otherwise specified as contemplated by Section 3.1, 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 3.1 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 3.7 Payment
of Principal and Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Unless
otherwise provided as contemplated by Section 3.1 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 9.2; provided, however, that
each installment of interest, if any, on any Registered Security may at the Company’s option be paid by (i) for any Registered
Security in global form, pursuant to the policies and procedures of the applicable depositary, and (ii) for any Registered Security
in definitive form, (x) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant
to Section 3.9, to the address of such Person as it appears on the Security Register or (y) 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 (i) for any Registered Security in global form, pursuant
to the policies and procedures of the applicable depositary, and (ii) for any Registered Security in global form, only upon presentation
and surrender of such Security to any office or agency referred to in this Section 3.7(a).
Unless otherwise provided as
contemplated by Section 3.1 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 3.1 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 3.1 for the Securities of such series and except, if applicable, as provided in Sections 3.12(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 1.6, 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 3.7(b) may be made applicable to any series of Securities pursuant to Section 3.1 (with such
modifications, additions or substitutions as may be specified pursuant to such Section 3.1). 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 1.6, to the Holder of
any such Security a notice from the Company (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 1.6, a notice from the Company 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 3.5, 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 3.8 Optional
Extension of Stated Maturity.
The provisions of this Section 3.8
may be made applicable to any series of Securities pursuant to Section 3.1 (with such modifications, additions or substitutions
as may be specified pursuant to such Section 3.1). 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 1.6, to the Holder of such Security not later than
40 days prior to the Original Stated Maturity a notice from the Company (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 1.6, notice from the Company 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 3.9 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 Section 3.5 and 3.7) 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 3.10 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 3.11 Computation
of Interest.
Except as otherwise specified
as contemplated by Section 3.1 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 3.12 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 3.12 may be modified or superseded with respect to any Securities
pursuant to Section 3.1.
(b) It
may be provided pursuant to Section 3.1 with respect to Registered Securities in definitive form 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 3.1, 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 3.12(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 3.1, if the election referred to in paragraph (b) above has been provided for pursuant
to Section 3.1, then, unless otherwise specified pursuant to Section 3.1, 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 3.1 and if at least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.1, 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 3.1, 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 3.1, 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 3.1, 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 3.12 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 3.1 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 1.6 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 1.6 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 3.12 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 3.13 Appointment
and Resignation of Successor Exchange Rate Agent.
(a) Unless
otherwise specified pursuant to Section 3.1, 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 3.1 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 3.12.
(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 3.1, 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 IV
SATISFACTION
AND DISCHARGE
Section 4.1 Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Request cease to be of further effect with respect to any series of Securities issued by the Company specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein
or pursuant hereto, and the rights of Holders of such series of Securities and any related coupons to receive, solely from the trust
fund described in subclause (B) of clause (1) of this Section, 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 4.1) 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 3.5, (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 3.6, (iii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 10.6, 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 9.3) 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 obligations of the Company to the Trustee under Section 6.6, the obligations of the Trustee
to any Authenticating Agent under Section 6.11 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the provisions of Sections 1.13, 1.14, 3.4, 3.5, 3.6, 9.2 and 9.3 (and any applicable provisions of
Article Ten and other provisions which survive by their terms) and the obligations of the Trustee under Section 4.2 shall survive
such satisfaction and discharge and remain in full force and effect.
Section 4.2 Application
of Trust Money.
Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant to Section 4.1 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 V
REMEDIES
Section 5.1 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 3.1 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;
(vii) 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
(6) any
other Event of Default provided with respect to Securities of that series.
Section 5.2 Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default specified
in clause (5) of Section 5.1 occurs, all Outstanding Securities of any series will become due and payable immediately without
further action or notice. If any other Event of Default, 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 3.1 for the Securities of such series and except, if applicable, as provided
in Sections 3.12(b), 3.12(d) and 3.12(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 5.13.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 5.3 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 5.4 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 6.6.
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 5.5 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 5.6 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 6.6;
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, subject to any subordination provisions with respect to any series of Securities as set forth in the Board Resolutions
or supplemental indenture establishing such series of Securities; and
Third:
The balance, if any, to the Person or Persons entitled thereto.
Section 5.7 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 5.2 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 5.2 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 5.1
with respect to the Securities of any series shall, for purposes of this Section 5.7, be deemed to affect only such series of Securities.
Section 5.8 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 3.7) 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 5.9 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 5.10 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 3.6,
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 5.11 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 5.12 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 5.2 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 5.1 with respect
to the Securities of any series shall, for purposes of this Section 5.12, be deemed to affect only such series of Securities.
Section 5.13 Waiver
of Past Defaults.
Subject to Section 5.2,
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 5.1 with respect to the Securities of any series shall, for purposes of this Section 5.13, be deemed to affect only
such series of Securities.
Section 5.14 Waiver
of Stay or Extension Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 5.15 Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant
in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at
the option of Holders as contemplated by Article Twelve hereof, on or after the applicable Repayment Date).
ARTICLE VI
THE TRUSTEE
Section 6.1 Notice
of Defaults.
Within 30 days after the occurrence
of any Default or Event of 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 5.1(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 6.2 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 6.3 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 6.4 May Hold
Securitie.
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 6.5 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 6.6 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 5.1(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 or the earlier resignation or removal of the Trustee.
Section 6.7 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 6.8 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 6.9.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving not less than 60 days’ written notice
thereof to the Company or such shorter notice as the Company may accept as sufficient. If the instrument of acceptance by a successor
Trustee required by Section 6.9 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 upon 30 days prior written notice 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. If the
Trustee has or shall acquire any conflicting interest, within the meaning of the TIA, it shall, within 90 days after ascertaining that
it has such conflicting interest, either eliminate such conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the TIA and this Indenture.
(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 6.7 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 1.6. 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 6.9 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 1.1 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 6.10 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 6.11 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 1.6. 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 6.6.
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:
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
, as Trustee
| | By: |
|
| | |
as Authenticating Agent |
| | By: |
|
| | |
as
Authorized Officer |
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
Section 7.1 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 7.2 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 7.3 Reports
by the Company.
The Company will file with
the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act, at the times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission; provided
further that any such information, documents or reports filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval (or EDGAR) system shall be deemed to be filed with the Trustee, provided further that the Trustee shall have no duty to
determine whether such filing has occurred.
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 7.4 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 VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental
Indentures Without Consent of Holders.
Without the consent of any
Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to
evidence the succession of another Person to the Company, or successive successions, and the assumption by such successor of the covenants
and obligations of the Company contained in the Securities of one or more series and in this Indenture or any supplemental indenture;
(2) to
add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any related coupons (and if
such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to
add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the benefit of such series); or
(4) to
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
(5) 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
(6) to
secure the Securities; or
(7) to
establish the form or terms of Securities of any series as permitted by Section 2.1 and 3.1; or
(8) 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 6.9(b); or
(9) (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
(10) 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 4.1, 13.2 or 13.3; 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 8.2 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 5.2
or the amount thereof provable in bankruptcy pursuant to Section 5.4, 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 3.1 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 5.13 or 908 of this Indenture, or reduce the requirements of Section 14.4
for quorum or voting with respect to Securities of such series, or
(3) modify
any of the provisions of this Section, Section 5.13 or Section 9.8, 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 8.3 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 8.4 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 8.5 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 8.6 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 8.7 Notice
of Supplemental Indentures.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 8.2, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 1.6, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE IX
COVENANTS
Section 9.1 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 or cause to
be paid 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 3.1 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 9.2 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 3.1, 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 3.1 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 3.1, 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 9.3 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 3.1 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b),
3.12(d) and 3.12(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 9.4 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 9.4, such compliance shall be determined without regard to any period of grace or requirement of notice
under this Indenture.
Section 9.5 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
as specified pursuant to Section 3.1(17) for Securities of such series, in any covenants added to Article Nine pursuant to
Section 3.1(17) 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 X
REDEMPTION OF SECURITIES
Section 10.1 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 3.1 for Securities of any series) in accordance with this Article.
Section 10.2 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 10.3. 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 10.3 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 (x) for Securities in global form,
in accordance with customary and applicable policies and procedures of the relevant depositary, and (y) for Securities in definitive
form, 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; 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 3.1.
The Trustee shall promptly
notify the Company in writing of the Securities in definitive form selected for partial redemption and 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 10.4 Notice
of Redemption.
Except as otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the manner provided for in Section 1.6 not less than
15 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 10.6, 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 10.6
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 3.5
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 10.5 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 9.3) 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 3.1 for the Securities of such series and
except, if applicable, as provided in Sections 3.12(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 10.6 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 3.1 for the Securities of such series and except, if applicable, as provided in Sections 3.12(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 9.2) and, unless otherwise specified as contemplated by Section 3.1, 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 3.7.
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 9.2) and, unless otherwise specified
as contemplated by Section 3.1, 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 10.7 Securities
Redeemed in Part.
Any Security in definitive
form 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 XI
SINKING FUNDS
Section 11.1 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 3.1 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 11.2. 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 11.2 Satisfaction
of Sinking Fund Payments with Securities.
Subject to Section 11.3,
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 11.3 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 3.1 for the Securities of such series and except, if applicable, as provided in Sections
3.12(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 11.2 (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 11.2 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 10.3 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 10.4. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 10.6 and 10.7.
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 9.3) 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 11.3.
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 XII
REPAYMENT AT OPTION OF HOLDERS
Section 12.1 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 3.1 for Securities of any series) in accordance with this Article.
Section 12.2 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 9.3) 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 3.1 for the Securities of such series and except, if applicable,
as provided in Sections 3.12(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 12.3 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 12.4 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 9.2)
and, unless otherwise specified pursuant to Section 3.1, 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 3.7.
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 12.2 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 9.2) and, unless otherwise specified as contemplated by Section 3.1, 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 12.5 Securities
Repaid in Part.
Upon surrender of any Registered
Security in definitive form 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 XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1 Option
to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified
as contemplated by Section 3.1 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 13.2, or covenant
defeasance of a series under Section 13.3 in accordance with the terms of such Securities and in accordance with this Article; provided,
however, that, unless otherwise specified pursuant to Section 3.1 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 13.2 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 13.4 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 13.5 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 13.4 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 1.13,
1.14, 3.4, 3.5, 3.6, 9.2 and 9.3 (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 13.2 notwithstanding the prior exercise of the option under Section 13.3
with respect to such Securities and any related coupons.
Section 13.3 Covenant
Defeasance.
Upon the exercise by the Company
of the above option applicable to this Section with respect to any Securities of a series, and, if specified pursuant to Section 3.1,
the Company shall be released from its obligations under any covenant with respect to such Outstanding Securities and any related coupons,
respectively, on and after the date the conditions set forth in Section 13.4 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 5.1(3) or Section 5.1(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 13.4 Conditions
to Defeasance or Covenant Defeasance.
The following shall be the
conditions to application of either Section 13.2 or Section 13.3 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 6.7
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 10.2
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 13.2, 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 13.3, 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 5.1 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.
(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 3.1.
(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 13.2 or the covenant defeasance under Section 13.3 (as
the case may be) have been complied with.
Section 13.5 Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of Section 9.3, all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 13.5, the “Trustee”) pursuant to Section 13.4 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 13.2, 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 3.1, if, after a deposit referred to in Section 13.4(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 13.4(1) has
been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or
by the terms of any Security in respect of which the deposit pursuant to Section 13.4(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 13.4 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 13.4
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 13.6 Reinstatement.
If
the Trustee or any Paying Agent is unable to apply any money in accordance with Section 13.5 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 13.2 or 13.3, 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 13.5; 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 XIV
MEETINGS OF HOLDERS OF SECURITIES
Section 14.1 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 14.2 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 14.1, to be held
at such time and at such place in the City of New York or in London or in Vancouver, British Columbia, 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 1.6, 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 14.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the City of New York, London or in Vancouver, British Columbia,
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 14.3 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 14.4 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 14.2(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 8.2, 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 8.2, 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 14.4, 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 14.5 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 1.4 and the appointment
of any proxy shall be proved in the manner specified in Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by Section 1.4 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 1.4 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 14.2(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 1.1);
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 14.2 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 14.6 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 14.2 and, if applicable, Section 14.4. 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.
* * *
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
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.]
SKEENA RESOURCES
LIMITED
% [DEBENTURE]
[NOTE] DUE 20
No.
CUSIP No. ____________
ISIN No. ______________
| |
$ |
| |
As revised by the Schedule of Increases or Decreases in Global
Security attached hereto |
Interest.
Skeena Resources Limited, a corporation duly organized and existing under the laws of British Columbia (herein called the “Company”,
which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to or
registered assigns, the principal sum of million
dollars ($ ), as revised by the
Schedule of Increases or Decreases in Global Security attached hereto, on ,
20 and to pay interest thereon
from , 20 or
from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on and in
each year, commencing , 20 at
the rate of % per annum, until
the principal hereof is paid or made available for payment.
Method
of Payment. 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 Record Date for such interest, which shall be or ,
as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Security 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 thereof
having been given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, all as more fully
provided in said Indenture. Payment of the principal of (and premium, if any) and any such interest on this Security will be made at
the Corporate Trust Office in U.S. Dollars.
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.
Authentication.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic
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 under its corporate seal.
| Dated: |
Skeena Resources
Limited |
| |
|
|
| |
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.
Date of
authentication:
| By: | as
Trustee |
| | | Authorized
Officer |
[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 Skeena Resources Limited and [___],
as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. [This Security is a global Security representing $[ , ,000]
aggregate principal amount [at maturity]** of the Securities of this series.]***
Payment
of the principal of (and premium, if any,) and interest on this Security will be made at the office or agency of the Company maintained
for that purpose in [___], in such coin or currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be made at the option of the Company (i) by
check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire
transfer to an account maintained in the United States by the Person entitled to such payment as specified in the Security Register.
[Notwithstanding the foregoing, payments of principal, premium, if any, and interest on a global Security registered in the name of a
Depositary or its nominee will be made by wire transfer of immediately available funds.] Principal paid in relation to any Security of
this series at Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office
or agency referred to above.
[As
provided for in the Indenture, the Company may from time to time without notice to, or the consent of, the Holders of the Securities,
create and issue additional Securities of this series under the Indenture, equal in rank to the Outstanding Securities of this series
in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Securities of this
series or except for the first payment of interest following the issue date of the new Securities of this series) so that the new Securities
of this series shall be consolidated and form a single series with the Outstanding Securities of this series and have the same terms
as to status, redemption or otherwise as the Outstanding Securities of this series.]****
[The
Securities of this series are subject to redemption upon not less than 15 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:
| ** | 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.
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 3.7 of the Indenture. Securities
of this series (or portions thereof) for whose redemption [repayment] payment is made or duly provided for in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date [Repayment Date].
In the
event of redemption [repayment] of this Security in part only, a new Security or Securities of this series for the unredeemed [unpaid]
portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
| * | 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. |
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.]**
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.
| ** | Include for global security. |
[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.] |
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
| Date
of Exchange |
|
Amount
of increase in
Principal Amount of
this Global Security |
|
Amount
of decrease in Principal Amount of this Global
Security |
|
Principal
Amount of this Global Security following each decrease or increase |
|
Signature
of authorized signatory of Trustee |
| |
|
|
|
|
|
|
|
|
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
agent
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
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) a citizen or resident of the United States; (B) 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; (C) any estate whose income is subject to U.S. federal income
tax regardless of its source or; (D) a trust if (x) a United States 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 (y) it
was in existence on August 20, 1996 and has a valid election in effect under applicable Treasury Regulations to be treated as a
United States person (collectively, “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 Skeena Resources Limited 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) a citizen or resident of the United States; (B) 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; (C) any estate whose income
is subject to U.S. federal income tax regardless of its source or; (D) a trust if (x) a United States 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 (y) it was a trust in existence on August 20, 1996 and has a valid election in effect under applicable Treasury
Regulations 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 Skeena Resources Limited 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)
SKEENA
RESOURCES LIMITED
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
In U.S. Dollars
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price
Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
| Equity |
Common shares, without
par value |
— |
— |
— |
— |
— |
— |
| Debt |
Debt
securities |
— |
— |
— |
— |
— |
— |
| Other |
Warrants |
— |
— |
— |
— |
— |
— |
| Other |
Subscription
receipts |
— |
— |
— |
— |
— |
— |
| Other |
Rights |
— |
— |
— |
— |
— |
— |
| Other |
Options |
— |
— |
— |
— |
— |
— |
| Other |
Units |
— |
— |
— |
— |
— |
— |
| Unallocated
(Universal) Shelf |
— |
457(o) |
(1) |
(1) |
$364,350,000(2) |
$0.0001531 |
$55,781.99 |
| Total
Offering Amounts |
|
$364,350,000 |
|
$55,781.99 |
| Total
Fees Previously Paid |
|
|
|
— |
| Total
Fee Offsets |
|
|
|
$9,720.39 |
| Net
Fee Due(3) |
|
|
|
$46,061.60
|
| (1) |
There are being registered under this Registration Statement
such indeterminate number of common shares, debt securities, warrants, subscription receipts, rights, options and units of Skeena
Resources Limited (the “Registrant”), and a combination of such securities, separately or as units, as may be sold by
the Registrant from time to time, which collectively, shall have an aggregate initial offering price not to exceed US$364,350,000
(converted from C$525,000,000 at an exchange rate of C$1.00=US$0.6940, which was the daily exchange rate as reported by the Bank
of Canada on March 13, 2025, a date within 5 business days of filing this Registration Statement). Pursuant to Rule 416
under the U.S. Securities Act of 1933, as amended (the “Securities Act”), the securities being registered hereunder include
such indeterminate number of common shares, debt securities, warrants, subscription receipts, rights, options and units as may be
issuable with respect to the securities being registered hereunder as a result of stock splits, stock dividends, or similar transactions.
The proposed maximum initial offering price per security will be determined, from time to time, by the Registrant in connection with
the sale of the securities under this Registration Statement. |
| (2) |
Estimated solely for the purpose of calculating the amount
of the registration fee pursuant to Rule 457(o) under the Securities Act. |
(3) |
The Registrant previously paid US$10,712.42 in registration
fees with respect to the Registration Statement on Form F-10 (File No. 333-267434) filed on September 15, 2022 (the
“2022 Registration Statement”), pertaining to the registration of US$115,560,000 of securities of the Registrant, of
which US$8,355.69 remained unutilized and was used to offset the total filing fee required of US$16,510.16 (the Registrant transferred
funds of US$8,154.47 and used available offsets for the remainder of the fee) with respect to the Registration Statement on Form F-10
(File No. 333-269481) filed on January 31, 2023 (the “2023 Registration Statement”), pertaining to the registration
of US$149,820,000 of securities of the Registrant, of which US$9,720.39 remains unutilized and therefore, available for future registration
fees pursuant to Rule 457(p) under the Securities Act. As the total filing fee required for this registration statement
is US$55,781.99, taking into consideration the available offset of US$9,720.39 from the 2023 Registration Statement, the Registrant
has accordingly transmitted US$46,061.60 otherwise due for this Registration Statement. |
Table 2: Fee
Offset Claims and Sources
In US Dollars
| | |
Registrant
or Filer
Name | |
Form or
Filing
Type | |
|
File
Number | |
Initial
Filing
Date | |
Filing
Date | |
Fee
Offset
Claimed | |
|
Security
Type
Associated
with Fee
Offset
Claimed | |
Security
Title
Associated
with Fee
Offset
Claimed | |
Unsold
Securities
Associated
with Fee
Offset
Claimed | |
Unsold
Aggregate
Offering Amount
Associated with
Fee Offset
Claimed |
| Fee Paid with
Fee Offset
Source
|
|
| Rule 457(p) |
| Fee
Offset Claims | |
Skeena Resources Limited | |
F-10 | |
|
333-269481 | |
January 31, 2023 | |
| |
$ |
9,720.39 | (2) |
|
Unallocated (Universal)
Shelf | |
Unallocated (Universal)
Shelf | |
Unallocated (Universal)
Shelf | |
$ |
88,206,871.94 |
|
|
|
|
|
| Fee Offset Sources | |
Skeena Resources Limited | |
F-10 | (1) |
|
333-269481 | |
| |
January
31, 2023 | |
|
| |
|
| |
| |
| |
|
|
| |
$ |
8,154.47 |
(3)(4)(5) |
| Fee Offset Sources | |
Skeena Resources Limited | |
F-10 | (1) |
|
333-267434 | |
| |
September
15, 2022 | |
|
| |
|
| |
| |
| |
|
|
| |
$ |
1,565.92 |
(3)(5) |
| (1) | The Registrant
has terminated or completed any offerings that included the unsold securities under the 2023
Registration Statement and the 2022 Registration Statement. |
| (2) | As the total filing
fee required for this registration statement is US$55,781.99, taking into consideration the
available offset of US$9,720.39 from the 2023 Registration Statement, the Registrant has
accordingly transmitted US$46,061.60 otherwise due for this Registration Statement. |
| (3) | The Registrant
previously paid US$10,712.42 in registration fees with respect to the 2022 Registration Statement,
of which US$8,355.69 remained unutilized and was used to offset the total filing fee required
for the 2023 Registration Statement. |
| (4) | The Registrant
previously paid US$16,510.16 in registration fees (the Registrant transferred funds of US$8,154.47
and used available offsets for the remainder of the fee) with respect to the 2023 Registration
Statement, of which US$9,720.39 remains unutilized and therefore, available for future registration
fees pursuant to Rule 457(p) under the Securities Act. This amount is based upon
US$88,206,871.94 of unsold securities, calculated based upon the daily exchange rate reported
by the Bank of Canada on February 26, 2025, the sale date of all sold securities, which
was C$1.00=US$0.6974. |
| (5) | The fee payment
made with the 2022 Registration Statement was US$10,712.42 and the contemporaneous fee payment
made with the 2023 Registration Statement was US$8,154.47. |
Grafico Azioni Skeena Resources (NYSE:SKE)
Storico
Da Mar 2025 a Mar 2025
Grafico Azioni Skeena Resources (NYSE:SKE)
Storico
Da Mar 2024 a Mar 2025
