As filed with the Securities and Exchange Commission on August 17, 2023.
Registration No. 333-273541
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM F-10
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NEW PACIFIC METALS CORP.
(Exact name of Registrant as specified in its
charter)
| British Columbia, Canada |
|
1040 |
|
Not Applicable |
(Province or other Jurisdiction of
Incorporation or Organization) |
|
(Primary Standard Industrial
Classification Code Number) |
|
(I.R.S. Employer Identification
Number, if applicable) |
Suite 1750 - 1066 West Hastings Street, Vancouver,
British Columbia V6E 3X1
(604) 663-1368
(Address and telephone number of Registrant’s
principal executive offices)
Puglisi & Associates
850 Library Avenue, Suite 204, Newark, DE
19711, (302)-738-6680
(Name, address (including zip code) and telephone
number (including area code) of agent for service in the United States)
Copies to:
|
Jalen Yuan
New Pacific Metals Corp.
Suite 1750 - 1066 West Hastings Street
Vancouver, British Columbia
Canada V6E 3X1
(604) 663-1368 |
|
Christopher L. Doerksen
Dorsey & Whitney LLP
Columbia Center
701 Fifth Avenue, Suite 6100
Seattle, Washington 98104
(206) 903-8800 |
Approximate date of commencement of proposed
sale of the securities to the public:
As soon as practicable 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 below):
| A. |
☐ |
upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada). |
| B. |
☒ |
at some future date (check the appropriate box below) |
| |
1. |
☐ |
pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than 7 calendar days after filing). |
| |
2. |
☐ |
pursuant to Rule 467(b) on ( ) at ( ) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ). |
| |
3. |
☒ |
pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. |
| |
4. |
☐ |
after the filing of the next amendment to this Form (if preliminary material is being filed). |
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to the home jurisdiction’s shelf prospectus offering procedures, check
the following box. ☒
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registration Statement shall become effective
as provided in Rule 467 under the Securities Act of 1933 or on such date as the Commission, acting pursuant to Section 8(a) of the Act,
may determine.
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES
OR PURCHASERS
Information contained herein is subject
to completion or amendment. A registration statement relating to these securities has been filed with the United States Securities and
Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any
sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
Information has been incorporated by reference
in this short form base shelf prospectus from documents filed with securities commissions or similar authorities in Canada.
Copies of the documents incorporated herein by reference may be obtained on request without charge from the General Counsel
and Corporate Secretary of New Pacific Metals Inc. at 1750-1066 West Hastings Street, Vancouver, British Columbia, Canada V6E 3X1 and
are also available electronically at www.sedarplus.ca.
No securities regulatory authority has expressed
an opinion about these securities and it is an offence to claim otherwise.
SHORT FORM BASE SHELF PROSPECTUS
| New Issue and Secondary Offering |
August 16, 2023 |
NEW PACIFIC METALS CORP.
US$200,000,000
Common Shares
Preferred Shares
Debt Securities
Warrants
Units
Subscription Receipts
This short form base shelf prospectus
(the “Prospectus”) relates to the offer and sale by New Pacific Metals Corp. (“New Pacific” or
the “Company”) from time to time of common shares (the “Common Shares”), preferred shares (“Preferred
Shares”), debt securities (“Debt Securities”), warrants to purchase other Securities (as defined herein)
(the “Warrants”), units (the “Units”) comprised of one or more of any of the other Securities or
any combination of such Securities and subscription receipts (the “Subscription Receipts”) (all of the foregoing,
collectively, the “Securities”) or any combination thereof in one or more series or issuances up to an aggregate total
offering price of US$200 million (or the equivalent thereof in Canadian dollars or any other currencies) during the 25-month period that
this Prospectus, including any amendments thereto, remains effective. The Securities may be offered separately or together, in amounts,
at prices and on terms to be determined based on market conditions at the time of sale and set forth in an accompanying shelf prospectus
supplement (each, a “Prospectus Supplement”). In addition, the Securities may be offered and issued in consideration
for the acquisition of other businesses, assets or securities by the Company or one of its subsidiaries. The consideration for any such
acquisition may consist of the Securities separately, a combination of Securities or any combination of, among other things, Securities,
cash and assumption of liabilities. One or more securityholders (each, a “Selling Securityholder”) of the Company
may also offer and sell Securities under this Prospectus. See “Selling Securityholders”.
New Pacific is permitted, under a multi-jurisdictional
disclosure system adopted by the securities regulatory authorities in Canada and the United States, to prepare this Prospectus in accordance
with the disclosure requirements of Canada. Prospective investors in the United States should be aware that such requirements are different
from those of the United States. The financial statements incorporated by reference herein have been prepared in accordance with International
Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS”) and thus may not be comparable
to financial statements of United States companies.
The enforcement by investors of civil liabilities
under the United States federal securities laws may be affected adversely by the fact that the Company is governed by the laws of British
Columbia, Canada, that some or all of its officers and directors are residents of a foreign country, that some or all of the experts
named in this Prospectus are, and the underwriters, dealers or agents named in any Prospectus Supplement may be, residents of a foreign
country, and that all or a substantial portion of the assets of the Company and said persons may be located outside of the United States.
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) NOR ANY STATE OR CANADIAN SECURITIES COMMISSION
OR REGULATORY AUTHORITY NOR HAS THE SEC OR ANY STATE OR CANADIAN SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE.
Prospective investors should be aware that
the acquisition of the Securities may have tax consequences in Canada and the United States. Such consequences for investors who are
resident in, or citizens of, the United States may not be described fully herein or in any applicable Prospectus Supplement. Prospective
investors should read the tax discussion contained in the applicable Prospectus Supplement, if any, with respect to a particular offering
of Securities.
The specific terms of the Securities with respect
to a particular offering will be set out in the applicable Prospectus Supplement, including, where applicable: (i) in the case of Common
Shares, the number of Common Shares offered, the offering price (in the event the offering is a fixed price distribution) or the manner
of determining the offering price (in the event the offering is a non-fixed price distribution), whether the Common Shares are being
offered for cash, and any other terms specific to the Common Shares; (ii) in the case of Preferred Shares, the designation of the particular
class or series of Preferred Shares, as applicable, the number of Preferred Shares offered, the offering price or manner of determining
the offering price, whether the Preferred Shares are being offered for cash, the dividend rate, if any, any terms for redemption or retraction,
any exchange or conversion terms, and any other terms specific to the Preferred Shares, (iii) in the case of Debt Securities, the aggregate
principal amount and ranking of Debt Securities being offered, the issue and delivery date, the maturity date, the offering price or
manner of determining the offering price, the interest provisions, the currency or currency unit for which the Debt Securities may be
purchased, the authorized denominations, the covenants, the events of default, any terms for redemption or retraction, any exchange or
conversion rights attached to the Debt Securities, the form of Debt Securities, whether the Debt Securities will be secured by any of
the Company’s assets or guaranteed by any other person, and any other terms specific to the Debt Securities; (iv) in the case of
Warrants, the offering price or manner of determining the offering price, whether the Warrants are being offered for cash, the designation,
the number and the terms of the Common Shares, Preferred Shares or other securities purchasable upon exercise of the Warrants, any procedures
that will result in the adjustment of these numbers, the exercise price, the dates and periods of exercise, and any other specific terms;
(v) in the case of Units, the number of Units being offered, the offering price and the number and terms of the Securities comprising
the Units; and (vi) in the case of Subscription Receipts, the number of Subscription Receipts being offered, the offering price or manner
of determining the offering price, whether the Subscription Receipts are being offered for cash, the terms, conditions and procedures
for the conversion of the Subscription Receipts into other Securities, the designation, number and terms of such other Securities, and
any other terms specific to the Subscription Receipts. See “Plan of Distribution”. A Prospectus Supplement relating
to a particular offering of Securities may include terms pertaining to the Securities being offered thereunder that are not within the
terms and parameters described in this Prospectus. Where required by statute, regulation or policy, and where Securities are offered
in currencies other than Canadian dollars, appropriate disclosure of foreign exchange rates applicable to such Securities will be included
in the Prospectus Supplement describing such Securities.
All applicable shelf information permitted under
applicable laws to be omitted from this Prospectus that has been omitted will be contained in one or more Prospectus Supplements that
will be delivered to purchasers together with this Prospectus, except in cases where an exemption from such delivery is available. Each
Prospectus Supplement will be incorporated by reference into this Prospectus for the purposes of securities legislation as of the date
of the Prospectus Supplement and only for the purposes of the distribution of the Securities to which the Prospectus Supplement pertains.
Prospective investors should read this Prospectus and any applicable Prospectus Supplement carefully before investing in any Securities
issued pursuant to this Prospectus.
The Company and the Selling Securityholder(s)
may offer and sell Securities to, or through, underwriters, dealers or agents and may also offer and sell certain Securities directly
to other purchasers or through agents pursuant to exemptions under applicable securities laws. See “Plan of Distribution”.
The Prospectus Supplement relating to each issue of Securities offered pursuant to this Prospectus will set forth the names of any underwriters,
dealers or agents involved in the offering and sale of such Securities and will set forth the terms of the offering of such Securities,
the method of distribution of such Securities including, to the extent applicable, the proceeds to the Company or the Selling Securityholder(s),
if any, and any fees, discounts or any other compensation payable to underwriters, dealers or agents and any other material terms of
the plan of distribution.
No underwriter has been involved in the preparation
of this Prospectus or performed any review of the contents of this Prospectus.
This Prospectus may qualify one or more “at-the-market distributions” (as defined in National Instrument 44-102 -
Shelf Distributions (“NI 44-102”)). The Securities may be sold from time to time
in one or more transactions at a fixed price or prices or at non-fixed prices including sales in transactions that are deemed to be at-the-market
distributions. If offered
on a non-fixed price basis, the Securities may be offered at market prices prevailing at the time of sale, at prices determined by reference
to the prevailing price of a specified Security in a specified market or at prices to be negotiated with purchasers, in which case the
compensation payable to an underwriter, dealer or agent in connection with any such sale will be decreased by the amount, if any, by
which the aggregate price paid for Securities by the purchasers is less than the gross proceeds paid by the underwriter, dealer or agent
to the Company. The price at which the Securities will be offered and sold may vary from purchaser to purchaser and during the period
of distribution.
This Prospectus does not qualify for issuance
Debt Securities in respect of which the payment of principal and/or interest may be determined, in whole or in part, by reference to
one or more underlying interests including, for example, an equity or debt security, a statistical measure of economic or financial performance
including, but not limited to, any currency, consumer price or mortgage index, or the price or value of one or more commodities, indices
or other items, or any other item or formula, or any combination or basket of the foregoing items. For greater certainty, this Prospectus
may qualify for issuance Debt Securities in respect of which the payment of principal and/or interest may be determined, in whole or
in part, by reference to published rates of a central banking authority or one or more financial institutions, such as a prime rate or
bankers’ acceptance rate, or to recognized market benchmark interest rates such as EURIBOR (or any replacement or successor thereto)
or a U.S. Federal funds rate.
In connection with any offering of Securities,
except as otherwise set out in a Prospectus Supplement relating to a particular offering of Securities, the underwriters, dealers or
agents may over-allot or effect transactions which stabilize or maintain the market price of the Securities offered at a level above
that which might otherwise prevail in the open market. Such transactions may be commenced, interrupted or discontinued at any time. However,
no underwriter of an “at-the-market distribution”, as defined in NI 44-102, and no person or company acting jointly or in
concert with such an underwriter, may, in connection with such a distribution, enter into any transaction that is intended to stabilize
or maintain the market price of the Securities or Securities of the same class as the Securities distributed under this Prospectus and
Prospectus Supplement, including selling an aggregate number or principal amount of Securities that would result in an underwriter creating
an over-allocation position in the Securities. A purchaser who acquires Securities forming part of the underwriters’, dealers’
or agents’ over-allotment position acquires those Securities under this Prospectus and the Prospectus Supplement relating to the
particular offering of Securities, regardless of whether the over-allotment position is ultimately filled through the exercise of the
over-allotment option or secondary market purchases. See “Plan of Distribution”.
The outstanding
Common Shares are listed and posted for trading on the Toronto Stock Exchange (the “TSX”) under the symbol “NUAG”
and are listed on the NYSE American (the “NYSE American”) under the symbol “NEWP”. On August 15, 2023, the
last trading day prior to the date of this Prospectus, the closing price of the Common Shares on the TSX was C$2.94 on the NYSE American was US$2.13.
Unless otherwise specified in the applicable
Prospectus Supplement, Preferred Shares, Debt Securities, Warrants, Units or Subscription Receipts will not be listed on any securities
exchange. Consequently, unless otherwise specified in the applicable Prospectus Supplement, there is no market through which the Preferred
Shares, Debt Securities, Warrants, Units or Subscription Receipts may be sold and purchasers may not be able to resell any such Securities
purchased under this Prospectus. This may affect the pricing of the Preferred Shares, Debt Securities, Warrants, Units or Subscription
Receipts in the secondary market, the transparency and availability of trading prices, the liquidity of such Securities and the extent
of issuer regulation. See “Risk Factors”.
This Prospectus constitutes a public offering
of these Securities only in those jurisdictions where they may be lawfully offered for sale and therein only by persons permitted to
sell such Securities.
Investing in the Securities involves significant
risks. Prospective purchasers of the Securities should carefully consider the risk factors described under the heading “Risk
Factors” and elsewhere in this Prospectus, in documents incorporated by reference in this Prospectus and in the applicable
Prospectus Supplement with respect to a particular offering of Securities.
All dollar amounts in this Prospectus are
in United States dollars, unless otherwise indicated. See “Currency Presentation and Exchange Rate Information”.
The Company’s head office is located at
Suite 1750 – 1066 West Hastings Street, Vancouver, British Columbia, V6E 3X1, and its registered office is located at Suite
1750 – 1066 West Hastings Street, Vancouver, British Columbia, V6E 3X1.
Readers should rely only on the information contained
or incorporated by reference in this Prospectus and any applicable Prospectus Supplement. The Company has not authorized anyone to provide
readers with different information. The Company is not making an offer to sell or seeking an offer to buy the Securities in any jurisdiction
where the offer or sale is not permitted. Readers should not assume that the information contained in this Prospectus and any applicable
Prospectus Supplement is accurate as of any date other than the date of such documents, regardless of the time of delivery of this Prospectus
and any applicable Prospectus Supplement or of any sale of the Securities. Information contained on the Company’s website should
not be deemed to be a part of this Prospectus or incorporated by reference herein and should not be relied upon by prospective investors
for the purpose of determining whether to invest in the Securities.
Market data and certain industry forecasts used
in this Prospectus or any applicable Prospectus Supplement and the documents incorporated by reference herein were obtained from market
research, publicly available information and industry publications. The Company believes that these sources are generally reliable, but
the accuracy and completeness of the information is not guaranteed. The Company has not independently verified this information and does
not make any representation as to the accuracy of this information.
References to “New Pacific” and “the
Company” include direct and indirect subsidiaries of New Pacific, where applicable.
TABLE OF CONTENTS
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING INFORMATION
Certain statements and information contained
in this Prospectus and the documents incorporated by reference herein, that are not current or historic factual statements, constitute
“forward-looking information” or “forward-looking statements” (collectively, “forward-looking information”)
within the meaning of the United States Private Securities Litigation Reform Act of 1995 and applicable Canadian provincial securities
laws. Any statements or information that express or involve discussions with respect to predictions, expectations, beliefs, plans, projections,
objectives, assumptions or future events or performance (often, but not always, using words or phrases such as “expects”,
“is expected”, “anticipates”, “believes”, “plans”, “projects”, “estimates”,
“assumes”, “intends”, “strategies”, “targets”, “goals”, “forecasts”,
“objectives”, “budgets”, “schedules”, “potential” or variations thereof or stating that
certain actions, events or results “may”, “could”, “would”, “might” or “will”
be taken, occur or be achieved, or the negative of any of these terms and similar expressions) are not statements of historical fact
and may be forward-looking statements or information. Such statements include, but are not limited to: statements regarding anticipated
exploration, drilling, development, construction, and other activities or achievements of the Company; inferred, indicated or measured
mineral resources or mineral reserves on the Company’s projects; the results of the PEA (as defined below) and other technical
reports; timing of receipt of permits and regulatory approvals; estimates of the Company’s revenues and capital expenditures; the
acquisition of other businesses, assets or securities; the growth of Company’s mineral resources through acquisitions and exploration;
future securities offerings; plan of distribution; terms of the Securities; use of proceeds; capital expenditures; success of exploration
activities; government regulation of mining operations; environmental risks; and other forecasts and predictions with respect to the
Company and its properties.
Forward-looking statements or information are
subject to a variety of known and unknown risks, uncertainties and other factors that could cause actual events or results to differ
from those reflected in the forward-looking statements or information, including, without limitation, risks relating to: global economic
and social impact of COVID-19; fluctuating equity prices, bond prices, commodity prices; calculation of resources, reserves and mineralization,
general economic conditions, foreign exchange risks, interest rate risk, foreign investment risk; loss of key personnel; conflicts of
interest; dependence on management, uncertainties relating to the availability and costs of financing needed in the future, environmental
risks, operations and political conditions, the regulatory environment in Bolivia and Canada, risks associated with community relations
and corporate social responsibility, and other factors described under the heading “Risk Factors” in this Prospectus, the
Annual Information Form (as defined below) and the other documents incorporated by reference into this Prospectus. This list is not exhaustive
of the factors that may affect any of the Company’s forward-looking statements or information.
The forward-looking statements are necessarily
based on a number of estimates, assumptions, beliefs, expectations and opinions of management as of the date of this Prospectus or the
date of the document incorporated by reference, as applicable, that, while considered reasonable by management, are inherently subject
to significant business, economic and competitive uncertainties and contingencies. These estimates, assumptions, beliefs, expectations
and options include, but are not limited to, those related to the Company’s ability to carry on current and future operations,
including: the duration and effects of COVID-19 on our operations and workforce; development and exploration activities; the timing,
extent, duration and economic viability of such operations; the accuracy and reliability of estimates, projections, forecasts, studies
and assessments; the Company’s ability to meet or achieve estimates, projections and forecasts; the stabilization of the political
climate in Bolivia; the Company’s ability to obtain and maintain social license at its mineral properties; the availability and
cost of inputs; the price and market for outputs; foreign exchange rates; taxation levels; the timely receipt of necessary approvals
or permits, including the ratification and approval of the Mining Production Contract with COMIBOL (as defined below) by the Plurinational
Legislative Assembly of Bolivia; the ability of the Company’s Bolivian partner to convert the exploration licenses at the Carangas
Project to AMCs (as defined below); the ability to meet current and future obligations; the ability to obtain timely financing on reasonable
terms when required; the current and future social, economic and political conditions; and other assumptions and factors generally associated
with the mining industry.
Although the forward-looking statements contained
in this Prospectus and the documents incorporated by reference herein are based upon what management believes are reasonable assumptions,
there can be no assurance that actual results will be consistent with these forward-looking statements. All forward-looking statements
in this Prospectus and the documents incorporated by reference herein are qualified by these cautionary statements. The forward-looking
statements contained in this Prospectus and in each of the documents incorporated by reference herein are made as of the date of such
document and, accordingly, is subject to change after such date. Accordingly, readers should not place undue reliance on such statements.
Other than specifically required by applicable laws, the Company is under no obligation and expressly disclaims any such obligation to
update or alter the forward-looking statements whether as a result of new information, future events or otherwise except as may be required
by law.
CAUTIONARY NOTE
REGARDING RESULTS OF PRELIMINARY ECONOMIC ASSESSMENT
The results of the independent preliminary economic
assessment (the “PEA”) contained in the Silver Sand Technical Report (as defined below) are preliminary in nature
and are intended to provide an initial assessment of the Silver Sand Project’s economic potential and development options. The
PEA mine schedule and economic assessment includes numerous assumptions and is based on both indicated and inferred mineral resources.
Inferred resources are considered too speculative geologically to have the economic considerations applied to them that would enable
them to be categorized as mineral reserves, and there is no certainty that the project economic assessments described herein will be
achieved or that the PEA results will be realized. The estimate of mineral resources may be materially affected by geology, environmental,
permitting, legal, title, socio-political, marketing or other relevant issues. Mineral resources are not mineral reserves and do not
have demonstrated economic viability. Additional exploration will be required to potentially upgrade the classification of the inferred
mineral resources to be considered in future advanced studies. AMC Consultants (as defined below) (mineral resource, mining, infrastructure
and financial analysis) was contracted to conduct the PEA in cooperation with Halyard Inc. (metallurgy and processing), and NewFields
Canada Mining & Environment ULC (tailings, water and waste management). The qualified persons (as defined in NI 43-101 (as defined
below)) for the PEA for the purposes of NI 43-101 are Mr. John Morton Shannon, P.Geo, General Manager and Principal Geologist at AMC Consultants,
Mr. Wayne Rogers, P.Eng, and Mr. Mo Molavi, P.Eng, both Principal Mining Engineers
with AMC Consultants, Mr. Andrew Holloway P.Eng, Process Director with Halyard Inc., and Mr. Leon Botham P.Eng., Principal Engineer with
NewFields Canada Mining & Environment ULC, in addition to Ms. Dinara Nussipakynova, P.Geo., Principal Geologist with AMC Consultants,
who estimated the mineral resources (collectively, the “Silver Sand Technical Report Authors”). All qualified persons
for the PEA have reviewed the disclosure of the PEA herein. The PEA is based on the MRE, which was reported on November 28, 2022. The
effective date of the MRE is October 31 2022. The cut-off applied for reporting the pit-constrained mineral resources is 30 g/t silver.
Assumptions made to derive a cut-off grade included mining costs, processing costs and recoveries and were obtained from comparable industry
situations. The model is depleted for historical mining activities. Mineral resources are constrained by optimized pit shells at a silver
price of US$22.50 per ounce, silver metallurgical recovery of 91%, silver payability of 99%, open pit mining cost of US$2.6/t, processing
cost of US$16/t, G&A cost of US$2/t, and slope angle of 44-47 degrees. Key assumptions used for pit optimization for the PEA mining
pit include silver price of US$22.50 per ounce, silver metallurgical recovery of 91%, silver payability of 99%, open pit mining cost
of US$2.6/t, incremental mining cost of US$0.04/t (per 10 m bench), processing cost of US$16/t, tailing storage facility operating cost
of US$0.7/t, G&A cost of US$2/t, royalty of 6.00%, mining recovery of 92%, dilution of 8%, and cut-off grade of 30 g/t silver.
CAUTIONARY NOTE
TO UNITED STATES INVESTORS REGARDING
PRESENTATION OF MINERAL RESOURCE ESTIMATES
This Prospectus, including the documents incorporated
by reference herein, has been prepared in accordance with the securities laws in effect in Canada which differ from the requirements
of United States securities laws. The technical and scientific information contained herein has been prepared in accordance with National
Instrument 43-101 - Standards of Disclosure for Mineral Projects (“NI 43-101”), which differs from the standards
adopted by the SEC.
Accordingly, the technical and scientific information
contained herein, including any estimates of mineral reserves and mineral resources, may not be comparable to similar information disclosed
by U.S. companies subject to the reporting and disclosure requirements of the SEC.
FINANCIAL INFORMATION
Unless otherwise indicated, all financial information
included and incorporated by reference in this Prospectus is determined using IFRS, which differs from United States generally accepted
accounting principles.
CURRENCY PRESENTATION
AND EXCHANGE RATE INFORMATION
The financial statements of the Company incorporated
by reference in this Prospectus are reported in United States dollars. In this Prospectus, all dollar amounts referenced, unless otherwise
indicated, are expressed in United States dollars and are referred to as “$” or “US$”. Canadian dollars are referred
to as “C$”. The high, low and closing exchange rates for Canadian dollars in terms of the United States dollar for each of
the indicated periods, as quoted by the Bank of Canada, were as follows:
| | |
Period ended
June 30 | | |
Year ended December 31 (C$) | |
| | |
2023 | | |
2022 | | |
2021 | | |
2020 | |
| High | |
| 1.3807 | | |
| 1.3856 | | |
| 1.2942 | | |
| 1.4496 | |
| Low | |
| 1.3151 | | |
| 1.2451 | | |
| 1.2040 | | |
| 1.2718 | |
| Closing | |
| 1.3240 | | |
| 1.3544 | | |
| 1.2678 | | |
| 1.2732 | |
On August 15, 2023,
the last business day prior to the date of this Prospectus, the exchange rate for Canadian dollars in terms of the United States dollar,
as quoted by the Bank of Canada, was US$1.00 = C$1.3482.
DOCUMENTS INCORPORATED
BY REFERENCE
Information
has been incorporated by reference in this Prospectus from documents filed with the securities commissions or similar authorities in
each of the provinces of Canada (the “Qualifying Provinces”). Copies of the documents incorporated herein by reference
may be obtained on request without charge from the General Counsel and Corporate Secretary of the Company at its head office at Suite
1750 – 1066 West Hastings Street, Vancouver, British Columbia, V6E 3X1, telephone (604) 633-1368, and are also available electronically
through SEDAR+ at www.sedarplus.ca or at www.sec.gov/edgar.shtml (“EDGAR”). The
filings of the Company through SEDAR+ and EDGAR are not incorporated by reference in this Prospectus except as specifically set out herein.
As of the date hereof, the following documents,
filed by the Company with the securities commissions or similar authorities in each of the Qualifying Provinces, and filed with, or furnished
to, the SEC, are specifically incorporated by reference into, and form an integral part of, this Prospectus provided that such documents
are not incorporated by reference to the extent that their contents are modified or superseded by a statement contained in this Prospectus
or a Prospectus Supplement or in any other subsequently filed document that is also incorporated by reference in the Prospectus or a
Prospectus Supplement, as further described below:
| (a) | the annual information form of the Company for the year ended
June 30, 2022 dated as at September 28, 2022 (the “Annual Information Form”); |
| (b) | the audited consolidated financial statements of the Company
as of and for the years ended June 30, 2022 and 2021, together with the notes thereto and the report of independent registered public
accounting firm thereon; |
| (c) | the management’s discussion and analysis of the Company
for the year ended June 30, 2022 (the “Annual MD&A”); |
| (d) | the unaudited condensed consolidated interim financial statements
of the Company for the three and nine months ended March 31, 2023 and 2022, together with the notes thereto (the “Interim Financial
Statements”); |
| (e) | the management’s discussion and analysis of the Company
for the three and nine months ended March 31, 2023 (the “Interim MD&A”); |
| (f) | the management information circular dated October 24, 2022
in respect of the annual general meeting of New Pacific shareholders held on December 2, 2022; |
| (g) | the material change report dated February 17, 2023 with respect
to the Company filing the Silver Sand Technical Report; |
| (h) | the material change report dated December 6, 2022 with respect
to the appointment of Peter Megaw and Dickson Hall to the board of directors of the Company (the “Board”); and |
| (i) | the material change report dated December 2, 2022 with respect
to the Company filing the Carangas Technical Report (as defined below). |
Any document of the type referred to in section
11.1 of Form 44-101F1 of National Instrument 44-101 - Short Form Prospectus Distributions filed by the Company with the securities
commissions or similar regulatory authorities in the applicable provinces of Canada after the date of this Prospectus and prior to the
termination of any offering of securities hereunder shall be deemed to be incorporated by reference in this Prospectus. In addition,
to the extent that any document or information incorporated by reference into this Prospectus is included in any report filed with or
furnished by the Company to the SEC pursuant to the United States Securities Exchange Act of 1934, as amended (the “Exchange
Act”), after the date of this Prospectus, that document or information shall be deemed to be incorporated by reference as an
exhibit to the Registration Statement (as defined below) of which this Prospectus forms a part (in the case of Form 6-K and Form 8-K,
only if and to the extent set forth therein). The Company may also incorporate other information filed with or furnished to the SEC under
the Exchange Act, provided that information included in any report on Form 6-K or Form 8-K shall be so deemed to be incorporated by reference
only if and to the extent expressly provided in such Form 6-K or Form 8-K.
Any statement contained in this Prospectus
or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded, for purposes
of this Prospectus, to the extent that a statement contained herein or in any other subsequently filed document that also is, or is deemed
to be, incorporated by reference herein modifies, replaces or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Prospectus; rather only such statement as modified or
superseded shall be considered to constitute part of this Prospectus. The modifying or superseding statement need not state that it has
modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The
making of a modifying or superseding statement 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.
A Prospectus Supplement containing the specific
terms of an offering of Securities will be delivered to purchasers of such Securities together with this Prospectus to the extent required
under applicable securities laws except in cases where an exemption from such delivery has been obtained and will be deemed to be incorporated
by reference into this Prospectus as of the date of such Prospectus Supplement, but only for the purposes of the offering of Securities
covered by that Prospectus Supplement.
Upon a new annual information form and related
annual audited consolidated financial statements and management’s discussion and analysis being filed by the Company with, and
where required, accepted by, the applicable securities regulatory authorities during the term of this Prospectus: (i) the previous annual
information form, the previous annual audited consolidated financial statements, and related management’s discussion and analysis;
(ii) all interim financial statements and related management’s discussion and analysis, all material change reports and all business
acquisition reports filed by the Company prior to the commencement of the Company’s financial year in respect of which the new
annual information form is filed; and (iii) any business acquisition report for acquisitions completed since the beginning of the financial
year in respect of which the new annual information form is filed (unless such report is incorporated by reference into the current annual
information form or less than nine months of the acquired business or related businesses operations are incorporated into the Company’s
current annual audited consolidated financial statements) shall be deemed no longer to be incorporated by reference into this Prospectus
for purposes of future offers and sales of Securities hereunder. Upon interim consolidated financial statements and the accompanying
management’s discussion and analysis being filed by the Company with the applicable securities regulatory authorities during the
period that this Prospectus is effective, the previous interim consolidated financial statements and the accompanying management’s
discussion and analysis filed shall no longer be deemed to be incorporated into this
Prospectus for purposes of future offers and sales
of Securities under this Prospectus. In addition, upon a new management information circular for the annual meeting of shareholders being
filed by the Company with the applicable securities regulatory authorities during the period that this Prospectus is effective, the previous
management information circular filed in respect of the prior annual meeting of shareholders shall no longer be deemed to be incorporated
into this Prospectus for purposes of future offers and sales of Securities under this Prospectus. In addition, certain marketing materials
(as that term is defined in applicable Canadian securities legislation) may be used in connection with a distribution of Securities under
this Prospectus and the applicable Prospectus Supplement(s). Any “template version” of “marketing materials”
(as those terms are defined in applicable Canadian securities legislation) pertaining to a distribution of Securities, and filed by the
Company after the date of the Prospectus Supplement for the distribution and before termination of the distribution of such Securities,
will be deemed to be incorporated by reference into that Prospectus Supplement for the purposes of the distribution of Securities to
which the Prospectus Supplement pertains.
The Company has not provided or otherwise authorized
any other person to provide investors with information other than as contained or incorporated by reference in this Prospectus or any
Prospectus Supplement. If an investor is provided with different or inconsistent information, he or she should not rely on it.
DOCUMENTS FILED
AS PART OF THE REGISTRATION STATEMENT
The following documents have been, or will be,
filed with the SEC as part of the Registration Statement (as defined below) of which this Prospectus forms a part: (1) the documents
listed under “Documents Incorporated by Reference”; (2) the consent of Deloitte LLP; (3) powers of attorney from certain
of the Company’s directors and officers; (4) the consents of the qualified persons referred to in this Prospectus or the documents
incorporated by reference herein; and (5) a copy of the form of indenture for Debt Securities. A copy of the form of any applicable warrant
agreement, subscription receipt agreement or statement of eligibility of trustee on Form T-1, as applicable, will be filed by post-effective
amendment or by incorporation by reference to documents filed or furnished with the SEC under the Exchange Act.
AVAILABLE INFORMATION
The Company is subject to the information reporting
requirements of the Exchange Act and applicable Canadian requirements and, in accordance therewith, files reports and other information
with the SEC and with securities regulatory authorities in Canada. Under the multi-jurisdictional disclosure system adopted by the United
States and Canada, such reports and other information may generally be prepared in accordance with the disclosure requirements of Canada,
which requirements are different from those of the United States. As a foreign private issuer, the Company is exempt from the rules under
the Exchange Act prescribing the furnishing and content of proxy statements, and the Company’s officers, directors and principal
shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. Prospective
investors may read and download any public document that the Company has filed with the securities commission or similar regulatory authority
in each of the provinces of Canada on SEDAR+ at www.sedarplus.ca. The reports and other information filed and furnished by the Company
with the SEC can be inspected on the SEC’s website at www.sec.gov.
The Company has filed with the SEC a registration
statement on Form F-10 (the “Registration Statement”) under the United States Securities Act of 1933, as amended (the
“U.S. Securities Act”), with respect to the Securities. This Prospectus, which forms part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement, certain parts of which are contained in the exhibits
to the Registration Statement as permitted by the rules and regulations of the SEC. See “Documents Filed as Part of the Registration
Statement”. For further information with respect to the Company and the Securities, reference is made to the Registration Statement
and the exhibits thereto. Statements contained in or incorporated by reference into this Prospectus about the contents of any contract,
agreement or other document are not necessarily complete and, in each instance, reference is made to the copy of the document filed as
an exhibit to the Registration Statement for a complete description of the matter involved. Each such statement is qualified in its entirety
by such reference. Each time the Company sells Securities under the Registration Statement, it will provide a Prospectus Supplement that
will contain specific information about the terms of that offering. The Prospectus Supplement may also add, update or change information
contained in this Prospectus.
SUMMARY DESCRIPTION
OF BUSINESS
The
Company is a Canadian mining issuer engaged in exploring and developing mineral properties in Bolivia. The Company’s precious metal
projects include the flagship Silver Sand project (the “Silver Sand Project”)
in Potosí Department, Bolivia; the Carangas project (the “Carangas Project”)
in the Oruro Department, Bolivia; and the Silverstrike project (the “Silverstrike Project”)
in La Paz Department, Bolivia. With experienced management and sufficient technical and financial resources, management believes the
Company is well positioned to create shareholder value through exploration and resource development.
The disclosure in this Prospectus and the documents
incorporated by reference herein of a scientific or technical nature for the Silver Sand Project is supported by the PEA and technical
report prepared in accordance with NI 43-101 titled “Technical Report – Silver Sand Deposit Preliminary Economic Assessment”
dated February 16, 2023 and with an effective date of November 30, 2022 (the “Silver Sand Technical Report”) and prepared
by certain qualified persons associated with AMC Mining Consultants (Canada) Ltd (“AMC Consultants”). The Silver Sand
Technical Report is available under the Company’s profile at www.sedarplus.ca. The Silver Sand Technical Report supersedes and
replaces all prior technical reports in respect of the Silver Sand Project.
The disclosure in this Prospectus and the documents
incorporated by reference herein of a scientific or technical nature for the Carangas Project is supported by the technical report prepared
in accordance with NI 43-101 titled “Carangas Project Technical Report” dated August 20, 2022 and with an effective date
of June 16, 2022 (the “Carangas Technical Report”) and prepared by Mr. Donald Birak, AusIMM Fellow. The Carangas Technical
Report is available under the Company’s profile at www.sedarplus.ca.
Further information regarding the business of
the Company, its operations and its mineral properties, including the Silver Sand Project, the Carangas Project, and the Silverstrike
Project can be found in the Annual Information Form and the documents incorporated by reference into this Prospectus. See “Documents
Incorporated by Reference”.
The corporate chart of the Company as of the
date hereof including the Company’s subsidiaries, together with the jurisdiction of incorporation of each subsidiary and the percentage
of voting securities beneficially owned, controlled or directed, directly or indirectly, is set out below.
Recent
Developments
On
February 16, 2023, the Company announced filing of the Silver Sand Technical Report, with an effective date of November 30, 2022. The
Silver Sand Technical Report was prepared in accordance with NI 43-101 by certain qualified persons associated with AMC Consultants.
Following the PEA results, the Company is working to advance the Silver Sand Project in 2023 by 1) completing a pre-feasibility study,
and 2) working towards obtaining an “environmental license”, that is the “Environmental Impact Statement (DIA)”
issued by the Ministry of Environmental and Water of Bolivia.
From
July 2021 to July 2023, the Company commenced multiple-staged drill programs totaling 81,200 metres (“m”)
in 189 drill holes at its Carangas Project. These drill results confirmed a broad silver-lead-zinc polymetallic mineralization starting
near surface in an area of up to 1,000 m long by 800 m wide by 200 m deep with a wide and thick zone of gold mineralization below it.
In early 2023, The Company engaged consulting firm RPMGlobal Canada Limited (“RPMGlobal”)
for technical services regarding a NI 43-101 mineral resource estimate report for the
Carangas Project. The qualified person from RPMGlobal
completed his site visit at the end of March 2023. The resource estimation is expected to be completed in the third quarter of 2023.
On
November 22, 2022, the Company filed the Carangas Technical Report.
From
June to October, 2022, the Company completed an initial discovery drill program totaling 3,200 m in 10 drill holes at its Silverstrike
Project. In 2023, the Company decided to pause the exploration activities at the Silverstrike Project in order to focus on programs for
Silver Sand Project and Carangas Project.
On
December 5, 2022, the Company announced the appointment of Dr. Peter Megaw and Mr. Dickson Hall to the Board. Two of the former directors,
Mr. Jack Austin and Mr. David Kong did not stand for re-election as directors.
On January 26, 2023, the Company announced the
appointment of Mr. Andrew Williams to the position of President.
MINERAL PROPERTIES
SILVER
SAND PROJECT
Current
Technical Report
The current technical report for the Silver Sand
Project is the Silver Sand Technical Report. The Silver Sand Technical Report supersedes all prior technical reports relating to the
Silver Sand Property. The qualified persons for the Silver Sand Technical Report are the Silver Sand Technical Report Authors. The Silver
Sand Technical Report was prepared in accordance with the requirements of NI 43-101 for filing on SEDAR+.
The disclosure set out below regarding the Silver
Sand Project is based on, without material modification or revision, the disclosure in the Silver Sand Technical Report unless otherwise
indicated. The Silver Sand Technical Report is available for review under the Company’s SEDAR+ profile at www.sedarplus.ca. The
Silver Sand Technical Report contains more detailed information and qualifications than are set out below and readers are encouraged
to review the Silver Sand Technical Report. This summary is subject to all of the assumptions, information and qualifications set forth
therein.
The Silver Sand Technical Report provides an
updated mineral resource estimate and provides the results of a preliminary economic assessment on the Silver Sand Project. The Company,
through its wholly-owned subsidiaries, acquired exploration and mining rights over an aggregate area of approximately 60 square kilometres
(km2) covering the Silver Sand deposit and its surrounding areas. The Silver Sand area has been intermittently mined for silver
from narrow high-grade mineralized veins in the Cretaceous sandstone since early to mid-1500s.
Property
Description, Location and Access
The Silver Sand Project is situated in the Colavi
District of Potosí Department in southwestern Bolivia, 33 kilometres (km) north-east of Potosí city, the department
capital. The approximate geographic center of the Silver Sand Project is 19°22’ 4.97” S latitude and 65°31’
22.93” W longitude at an elevation of 4,072 m above sea level.
Exploration and mining rights in Bolivia are
granted by the Ministry of Mines and Metallurgy through the Jurisdictional Mining Administrative Authority (“AJAM”).
Under Mining and Metallurgy Law No. 535 (the “2014 Mining Law”), as modified by the Law No. 845 (the “2016
Mining Law”, together with the 2014 Mining Law, the “New Mining Laws”), tenure is granted as either an Administrative
Mining Contract (“AMC”) or an exploration license. Tenure held under previous legislation was converted to Temporary
Special Authorizations (“ATEs”), formerly known as “mining concessions”, under the New Mining Laws. These
ATEs are required to be consolidated to new 25-hectare sized cuadriculas (concessions) and converted to AMCs. AMCs created by conversion
recognize existing rights of exploration and / or exploitation and development, including treatment, foundry refining, and / or trading.
AMCs have a fixed term of 30 years and can be
extended for a further 30 years if certain conditions are met. Each contract requires ongoing work and the submission of plans to AJAM.
Exploration licenses are valid for a maximum
of five years and provide the holder with the first right of refusal for an AMC.
In specific areas, mineral tenure is owned by
the Bolivian state mining corporation, Corporación Minera de Bolivia (“COMIBOL”). In these areas development
and production agreements can be obtained by entering into a Mining Production Contract (“MPC”) with COMIBOL.
Depending on the nature and scope of the activities
to be conducted, the operator may need specific licenses or dispensations from the environmental authorities under the Ministry of Environment
and Water or the Departmental Governorships. This applies to projects that may require consultation with a population that could be affected
by the Silver Sand Project.
100%
Owned New Pacific Tenure
The Silver Sand Project originally comprised
17 ATEs, now converted to a consolidated AMC covering an area of 3.1656 km2. These ATEs were acquired by New Pacific in its
original purchase of the interests of Alcira, now New Pacific’s wholly owned subsidiary. They are valid for 30 years and can be
extended for an additional 30 years.
In accordance with the 2014 and 2016 Mining Laws,
New Pacific (through Alcira) submitted all required documents for the consolidation and conversion of the original 17 ATEs, which comprise
the core of the Silver Sand Project, to Cuadriculas and AMC, to AJAM. Conversion was initially approved by AJAM in February 2018. On
6 January 2020, Alcira signed an AMC with AJAM pursuant to which the 17 ATEs were consolidated into one concession named as Arena De
Plata (Silver Sand) with an area of 3.1656 km2. This AMC is registered with the mining register with mining registration number
1-05-1500055-0001-21, notary process completed and registration published in the mining gazette on 15 July 2021.
In addition, New Pacific acquired 100% interest
in three continuous concessions originally consisting of ATEs called Jisas, Jardan and El Bronce from third party private entities. The
Jisas and Jardan concessions have been consolidated into an AMC named as Jisasjardan with an area of 1.75 km2. This AMC is
registered by AJAM with registration number 1-05-1500410-0094-22. The El Bronce concession has been consolidated into an AMC named
Bronce with an area of 0.5 km2. This AMC is registered by AJAM with registration number 1-05-1501194-0093-22. These two AMCs
have been notarized and registration published in the mining gazette on 12 February 2023.
The total area of AMCs under full control of
the Company is 5.42 km2 after the consolidation and conversion. Table 1 summarizes the Silver Sand Project mineral tenure.
Table 1 Mineral Tenure controlled
by New Pacific
National registry | |
Name | |
Concession type | |
Size of in km2 | | |
Titleholder | |
Duration | |
| 1-05-1500055-0001-21 | |
Arena De Plata | |
AMC | |
| 3.17 | | |
Empresa Minera Alcira S.A. | |
| 30
years from February 14, 2020 | |
| 1-05-1500410-0094-22 | |
Jisasjardan | |
AMC | |
| 1.75 | | |
Empresa Jisas – Jardan SRL | |
| 30 years from December 4, 2020 | |
| 1-05-1501194-0093-22 | |
Bronce | |
AMC | |
| 0.5 | | |
Empresa El Cateador SRL | |
| 30 years from January 15, 2021 | |
| Totals | |
| |
| |
| 5.42 | | |
| |
| | |
Mining production contract
The Company, through Alcira, entered into an
MPC with COMIBOL on January 11, 2019. An updated MPC was entered with COMIBOL on January 19, 2022. The updated MPC covers 12 ATEs and
196 cuadriculas for a total area of about 55 km2 surrounding the Silver Sand Project core area. The MPC must be ratified by
the Congress of Bolivia (“Congress”) to be valid and enforceable.
Once the MPC has been ratified by Congress, the
MPC with COMIBOL will be valid for 15 years which may be automatically renewed for an additional 15 year term and potentially, subject
to submission of an acceptable work plan, for an additional 15 year term for a total of 45 years. According to the terms of the MPC,
the Company will pay COMIBOL a 6% gross sales value if the mineral concessions covered by the MPC are commercially exploited at a future
date.
Environmental permits
The Company has successfully obtained environmental
permits from local authorities to conduct mineral exploration and drilling activities in the mineral concessions fully owned by the Company
and the MPC areas owned by COMIBOL. There are no known significant factors or risks that might affect access or title, or the right or
ability to perform work on the Silver Sand Project, including permitting and environmental liabilities to which the Silver Sand Project
is subject.
Land holding costs
AJAM employs a special tax unit (“STU”),
that is indexed to the “Unidad de Fomento a la Vivienda”, to calculate the annual fee which mineral concession holders have
to pay to the government. Depending on the type and size of mineral concessions, the number of STUs varies between 375 and 692 STUs per
cuadricula. In 2019, each STU was equivalent to two Bolivianos. Note that the STU may change slightly year by year.
Table 2 below provides details of fees paid to
the government from 2019 to 2022. In the years 2019 to 2021, fees were paid based on the 17 ATEs. Starting from year 2022, fees are paid
based on the consolidated concession of AMCs. For the concessions covered by the MPC with COMIBOL, fees are paid only for 7 ATEs in the year
2019. The Company does not have to pay any fees to the government for the remaining ATEs owned by COMIBOL and covered by the MPC as they
are nationalized concessions. The fees were paid for year 2019 only as COMIBOL did not provide account information to make payments for
years 2020, 2021, and 2022. For the 196 Cuadriculas, according to the terms of MPC, the Company will have to pay the annual fees to
the government when COMIBOL is granted mineral concessions by AJAM. In addition, the Company will pay COMIBOL a management fee of $10,000
per month for all the concessions covered by the MPC upon ratification.
Table 2 Fees paid to government from
2019 to 2022
Concessions | |
Title holder | |
2019 | | |
2020 | | |
2021 | | |
2022 | |
| 17 ATEs | |
Empresa Minera Alcira S.A. | |
| 11,644 | | |
| 11,869 | | |
| 12,093 | | |
| | |
| Arena de Plata | |
Empresa Minera Alcira S.A. | |
| | | |
| | | |
| | | |
| 6,140 | |
| Bronce | |
Empresa El Cateador SRL | |
| 222 | | |
| 226 | | |
| 230 | | |
| 233 | |
| Jisas | |
Empresa Jisas – Jardan SRL | |
| 4,620 | | |
| 4,710 | | |
| 4,800 | | |
| 4,850 | |
| Jardan | |
Empresa Jisas – Jardan SRL | |
| 1,848 | | |
| 1,884 | | |
| 1,920 | | |
| 1,940 | |
| 7 ATEs of MPC | |
COMIBOL | |
| 3,215 | | |
| | | |
| | | |
| | |
| | |
Total BOB | |
| 21,549 | | |
| 18,689 | | |
| 19,043 | | |
| 13,163 | |
| | |
Equivalent to US$ | |
| 3,096 | | |
| 2,685 | | |
| 2,736 | | |
| 1,891 | |
Surface rights
As per the 2014 Mining Law, holders of mining
rights may obtain surface rights through administrative agreements entered into with AJAM. In addition, surface rights may be obtained
on third-party contract areas and by neighbouring properties by the following means: (i) agreement between parties; (ii) payment of compensation;
and (iii) compliance with the regulations and procedures for authorization. Once surface rights are obtained, holders of mining rights
may build treatment plants, dams and tailings, infrastructure and other infrastructure necessary to carry out mining activities. The
Company has not yet obtained surface land rights.
Royalties and encumbrances
For the MPC, if commercial production commences,
the Company will pay COMIBOL a 6% gross sales value of all minerals produced from the MPC areas.
AMCs are subject to the following royalties and
duties:
(i) Mining royalty: The royalty is applicable
to all mining actors and applies to the exploitation, concentration and/or commercialization of mineral and metals non-renewable resources
at the time of their internal sale or export pursuant to the 2014 Mining Laws. The royalty is established according to the status of
the mineral (raw, refined, etc.), on whether the mineral will be exported, and international mineral prices. The royalty applicable to
silver pre-concentrates, concentrates, complexes, precipitates, bullion or molten bar and refined ingot is as shown in Table 3.
Table 3 Royalty
applicable to silver in the AMC
| Official silver price per troy ounce (US$) | |
Aliquot (%) | |
| Greater than $8.00 | |
| 6 | |
| From $4.00 to $8.00 | |
| 0.75 * official silver price | |
| Less than $4.00 | |
| 3 | |
(ii) Mining Patent: Is a requirement
for the mining operator to continue holding mining rights over the mining area. Patents are calculated according to the size of the area
under the exploration license or contract, as set out in the 2014 Mining Law. Failure to pay for the patents will trigger the loss of
the underlying exploration or mining rights.
History
Mining activity has been carried out on the Silver
Sand Project and adjacent areas by various operators intermittently since the early 16th century. Historical mining activities on the
Silver Sand Project mainly targeted high-grade vein structures and records of historical mine production are not available.
Despite the long history of mining on the Silver
Sand Project and its adjacent areas, there has been little modern systematic exploration work recorded prior to 2009. In 2009 modern
exploration on the Silver Sand Project commenced when Ningde Jungie Mining Industry Co. Ltd. (NJ Mining) purchased Alcira, owner of the
Silver Sand
Project from Empresa Minera Tirex Ltda, a private Bolivia mining company. New Pacific acquired Alcira from NJ Mining, in
mid-2017.
NJ Mining carried out a comprehensive exploration
program across the Silver Sand Project. Exploration work comprised geological mapping, surface and underground sampling, trenching, and
the drilling of eight diamond drillholes for 2,334 metres (m).
There are no known historical estimates of mineral
resources or mineral reserves at the Silver Sand Project, and there has been no documented production from the Silver Sand Project.
Geological Setting,
Mineralization and Deposit Types
The Silver Sand Project is located in the south
section of the polymetallic tin belt in the Eastern Cordillera of the Central Andes, Bolivia. The oldest rocks observed within the Silver
Sand Project comprise Ordovician to Silurian marine, clastic sediments which have been intensely folded and faulted.
Bedrock in the Silver Sand Project area mainly
consists of weakly deformed Cretaceous continental sandstone, siltstone, and mudstone and the strongly deformed Paleozoic marine sedimentary
rocks. The Cretaceous sedimentary sequence forms an open syncline which plunges gently NNW and is bounded to the SW and NE by NW trending
faults.
The Cretaceous sedimentary sequence within the
Silver Sand Project is divided into the lower La Puerta Formation and the upper Tarapaya Formation. The La Puerta Formation consists
of sandstones and unconformably overlies the highly folded Paleozoic marine sedimentary rocks. The Tarapaya Formation conformably overlies
the La Puerta sandstones in the central part of the Silver Sand Project and comprises siltstones and mudstones intercalated with minor
sandstone. Both the Cretaceous and Paleozoic sedimentary sequences are intruded by numerous small Miocene subvolcanic dacitic porphyry
intrusions.
The Silver Sand Project exhibits a variety of
geometries and morphology of the mineralized bodies which are controlled and hosted by local structures of tectonic transfer nature.
Some are evident in outcrops, but the best examples are observed in drill cores and in underground workings. Mineralized structures usually
appear as steps-overs developed between two neighbouring fault / vein segments that exhibit an echelon arrangement and may or may not
be connected by lower-ranking faults / vein. These types of structures are of fractal type, which implies that they repeat their geometry,
regardless of the observation scale, in arrangements of sigmoid (jogs), echelon, subparallel stepped, relay, horsetails, and extensional
nets (swarms).
A total of eleven mineralized prospects have
been identified across the Silver Sand Project to date. These include the Silver Sand deposit and the El Fuerte, San Antonio, Aullagas,
Snake Hole, Mascota, Esperanza, North Plain, Jisas, Jardan, El Bronce, occurrences. Silver Sand, Snake Hole, Jisas, and El Bronce have
been tested by drilling. Another nine prospects were defined by rock chip and grab sampling of ancient and recent artisanal mine workings
and dumps. Exploration results from surface outcrops and underground workings defined a silver mineralized belt 7.5 km long and 2 km
wide. At the Silver Sand deposit mineralization has been traced for more than 2,000 m along strike, to a maximum width of about 680 m
and a dip extension of more than 250 m.
Four mineralization styles have been recognized
in the Silver Sand Project, and these in order of importance are: (1) sandstone-hosted silver mineralization, (2) porphyritic dacitic-hosted
silver mineralization, (3) diatream breccia-hosted silver mineralization, and (4) manto-type tin and base metal mineralization.
The mineralization in the Silver Sand Project
comprises silver-containing sulphosalts and sulphides occurring within sheeted veins, stockworks, veinlets, breccia infill and disseminated
within host rocks. The most common silver-bearing minerals include freibergite [(Ag,Cu,Fe)12(Sb,As)4S13], miargyrite [AgSbS2], polybasite
[(Ag,Cu)6(Sb,As)2S7] [Ag9CuS4], bournonite [PbCuSbS3] (some lattices of copper may be replaced by silver), andorite [PbAgSb3S6], and
boulangerite [Pb5Sb4S11] (some lattices of lead may be replaced by silver). Most silver mineralization is hosted in La Puerta sandstone
units with minor amounts in porphyritic dacite diatreme breccia.
The Silver Sand Project is an epithermal silver
deposit. Silver mineralization is hosted by faults, fractures, fissures, and crackle breccia zones in the Cretaceous La Puerta (brittle)
sandstone and porphyritic dacitic dikes, laccolith, and stocks. In the mineralized sandstone, open spaces are filled with silver-containing
sulphosalts and sulphides in forms of sheeted veins, stockworks, and veinlets, as well as breccia fillings and minor disseminations.
Most silver mineralization in the Silver Sand Project is structurally controlled with secondary rheological controls. The intensity of
mineralization is dependent on the frequency of various mineralized vein structures developed in the brittle host rocks.
Silver and base metal mineralization in the Silver
Sand Project was formed during the regional uplifting and erosion process associated with the Tertiary orogenic events in the Eastern
Cordillera. The genetic model of silver and tin mineralization in the Silver Sand Project is a magmatic-hydrothermal system related to
a deep-seated magmatic centre.
Exploration
Since October 2017, New Pacific has carried out
an extensive property-scale reconnaissance investigation program by surface and underground sampling of the mineralization outcrops and
the accessible ancient underground mine workings across the Silver Sand Project.
A total of 1,046 rock chip samples were collected
from 35 separate outcrops by New Pacific. Continuous chip samples were collected at 1.5 m intervals along lines roughly perpendicular
to the strike direction of the mineralization zones. Sample lines covered a total length of 2,863 m. Most of the sampled outcrops are
located above or near old mine workings.
New Pacific has also mapped and sampled 65 historical
mine workings comprising 5,780 m of underground tunnels. A total of 1,171 continuous chip samples have been collected at 1 – 2
m intervals along walls of available tunnels that cut across the mineralized zones.
Mine dumps from historical mining activities
are scattered across a significant portion of the Silver Sand Project. New Pacific has collected a total of 1,408 grab samples from historical
mine dumps. The majority of samples collected were remnants of high-grade narrow veins extracted from underground mining activity. Of
the 1,408 samples collected from historical mine dumps to date, 439 samples (31%) returned assay results between 30 and 3,290 grams per
tonne (g/t) Ag with an average grade of 194 g/t Ag.
Assay results of underground chip samples and
surface mine dump grab samples show that silver mineralization widely occurs in the wall rocks of the previously mined-out high-grade
veins in the abandoned ancient underground mining works.
Drilling
From October 2017 to July 2022, New Pacific conducted
intensive diamond drilling programs on the Silver Sand Project totalling 139,920 m in 564 drillholes. A total of 523 HQ diamond holes
for a total metreage of 128,074 m was drilled over the Silver Sand core area to define the mineralization. After drilling specific exploration
targets, holes were drilled on a 50 m x 50 m grid to delineate the spatial extensions of the major mineralized zones. This was followed
up by drilling on a nominal 25 x 25 m grid, infilling defined areas of mineralization. Drilling was halted during 2020 and part 2021
due to COVID-19 protocols and recommenced later in 2021.
All holes were drilled from the surface. Drillholes
were drilled up to 545 m deep at inclinations between -45° and -80° towards azimuths of 060° (~NE) and 220° (~SW) to
intercept the principal trend of mineralized vein structures perpendicularly.
The drilling programs have covered an area of
approximately 1,600 m long in the north-south direction and 800 m wide in the east-west direction and have defined silver mineralization
at the Silver Sand deposit over an oblique strike length of 2 km, a collective width of 650 m and to a depth of 250 m below surface.
Drill coring was completed using conventional
HQ (64 millimetre (mm) diameter) equipment and 3 m drill rods. Drill collars are surveyed using a Real-Time Kinematic differential global
positioning system (GPS), and downhole deviation surveys are completed by the drilling contractor using a REFLEX EZ-SHOT and SPT GyroMaster
downhole survey tools. Drillholes are surveyed at a depth of approximately 20 m, and on approximately 30 m intervals as drilling progresses.
Upon completion of each drillhole a concrete monument is constructed with the hole details inscribed.
Core is collected by New Pacific personnel and
drill core containing visible mineralization is wrapped in paper to minimize disturbance during transport. Logging is both carried out
at the rig where a quick log is completed, and after transportation to the Company’s Betanzos core processing facility, which is
located approximately 1.5 hours, by road, from the Silver Sand Project. Currently data is directly collected or loaded into MX Deposit a
database software from Sequent.
In addition to drilling in the Silver Sand core
area, drilling was carried out at Snake Hole (32 drillholes for 7,457 m) and at the northern prospects, (9 drillholes for 4,298 m). These
holes were more exploratory in nature but the same procedures as the grid drilling in the core area were employed.
Core recovery from the drill programs varies
between 0% (voids and overburden) and 100%, averaging 97%. More than 92% of core intervals have a core recovery of greater than 95%.
Sampling, Analysis and Data Verification
New Pacific has developed and implemented good
standard procedures for sample preparation, analytical, and security protocols.
New Pacific manages all aspects of sampling from
the collection of samples, to sample delivery to the laboratory. All samples are stored and processed at the Betanzos facility. This
facility is surrounded by a brick wall, has a locked gate, and is monitored by video surveillance and security guards 24 hours a day,
seven days a week. Within the facility, there are separate and locked areas for core logging, sampling, and storage.
Samples are transported on a weekly basis by
New Pacific personnel from the Betanzos facility to the ALS laboratories (ALS) in Oruro, Bolivia for sample preparation, and then shipped
to ALS in Lima, Peru for geochemical analysis. ALS Oruro and ALS Lima are part of ALS Global – an independent commercial laboratory
specializing in analytical geochemistry services, all of which are accredited. in accordance with ISO/IES 17025:2017, and are independent
of New Pacific.
All core, chip, and grab samples are prepared
using the following procedures: (1) crush to 70% less than 2 mm; (2) riffle split off 250 g; and (3) pulverize split to better than 85%
passing a 75-micron sieve.
Sample analysis in 2017 and 2018 comprised an
aqua regia digest followed by Inductively Coupled Plasma (ICP) Atomic Emission Spectroscopy (AES) analysis of Ag, Pb, and Zn (ALS code
OG46). Assay results greater than 1,500 g/t Ag were sent for fire assay and gravimetric finish analysis. In 2019 New Pacific changed
its analysis protocol to include systematic multielement analysis for an initial 51 element ICP mass spectroscopy (MS) analysis. Over-limit
samples were handled differently for different elements and protocols were further amended for the 2021-2022 drilling.
Drill programs have included quality assurance
and quality control monitoring programs which have incorporated the insertion of certified reference materials (CRMs), blanks, and duplicates
into the sample streams, and umpire (check) assays at a separate laboratory at different times.
Four different CRMs have been used throughout
the Silver Sand Project history. A total of 4,495 CRMs were submitted between October 2017 and July 2022 representing an average overall
insertion rate of 5%. Insertion rates for CRMs have been consistently above 5% on a yearly basis with the exception of 2019.
Blank material from two different quarry sites
been used over time and coarse blanks have been inserted consistently at an acceptable insertion rate. While there have been some changes
in failure criteria, there has been no evidence of
systemic contamination and failures are dealt with by a re-assay protocol. Pulp blank
samples have been inserted since 2021, but at a low insertion rate of less than 2.5%. Duplicates are also inserted, comprising field
duplicates, coarse duplicates and pulp duplicates. In 2021 and 2022 they have been consistently included but at a rate of between 3.65%
and 4.07%. Coarse rejects were also submitted to Actlabs Skyline as umpire samples in the 2017 to 2019 period. Actlabs Skyline is an
independent geochemical laboratory certified according to ISO 9001:2015.
The qualified person has reviewed the quality
assurance and quality control procedures used by New Pacific including certified reference materials, blank, duplicate and umpire data
and has made some recommendations. The qualified person does not consider these to have a material impact on the mineral resource estimate
and considers the assay database to be adequate for mineral resource estimation. The qualified person considers sample preparation, security,
and analytical procedures employed by New Pacific to be adequate.
Metallurgical Testing
Two significant metallurgical testwork programs
have been completed since 2018.
The initial (2018/19) program was completed at
SGS Mineral Services in Lima, Peru, and examined several metallurgical composites of Oxide, Transition, and Sulphide mineralization from
two areas of the Silver Sand deposit. A geometallurgical sampling approach was used and was designed to highlight the effect of differences
in silver grade, degree of oxidation, and lithology. Four independent geometallurgical testwork programs (mineral characterization, comminution,
froth flotation, and cyanide leaching) were carried out on the different metallurgical composites. Six metallurgical domains were identified
for the flotation and leaching testwork and six geological domains were branded for the comminution work.
The second (2020/21) program, also completed
at SGS Mineral Services in Lima Peru, maintained the initial geometallurgical definitions and examined a larger and more representative
set of metallurgical samples via master composites and high / low grade variants of Oxide, Transition, and Sulphide mineralization. A
more comprehensive scope of work was completed in this program, including physical and chemical characterization, heavy liquids separation,
mineralogical analysis, particle sorting, flotation, cyanidation, and environmental characterization.
Both metallurgical testing programs demonstrated
that good silver recoveries are possible using conventional extraction methods and that further improvements and refinements should be
possible in future programs after fine-tuning the various test parameters. Highlights of the two testwork programs are as follows:
| ● | An
initial assessment of ore sorting showed encouraging results. |
| | | |
| ● | A
more comprehensive assessment of physical characteristics of the different oxidation types,
indicated that samples are amenable to SAG milling. |
| | | |
| ● | Composite
samples were found to be mostly in the soft to medium grindability range with low to medium
values of Abrasion Index (Ai). |
| | | |
| ● | A
larger flotation program culminated in locked cycle testing of new composite samples of Oxide,
Transition and Sulphide mineralization, with silver recoveries of 67.4%, 83.2%, and 87.1%
respectively at concentrate mass pulls of 0.5%, 2.2%, and 5.0%. Silver recovery is expected
to increase with higher concentrate mass pull. |
| | | |
| ● | A
more comprehensive cyanidation program included coarse-particle and fine-particle bottle
roll leaching, column leaching and leaching of flotation concentrates. Cyanidation of composite
samples ground to 80% -75 µm achieved silver extractions of up to 93.9%, 92.5%, and
78.3% for Transitional, Oxide, and Sulphide master composite samples respectively under conditions
of sodium cyanide concentration of 2 grams per litre (g/L), dissolved oxygen concentration
of 11-15 parts per million (ppm) and retention time of 48 hours. |
| ● | Initial
testing of cyanide detox amenability raised no concerns and suggests that SO2/Air is able
to achieve residual cyanide concentration of 20 ppm WAD cyanide (CN) or less. |
| ● | Initial
environmental testing of flotation tailing and cyanidation residue was completed, including
ABA and TCLP characterization. |
| | | |
| ● | Samples
of oxide mineralization were submitted for coarse column (100% passing 12.7 mm) leach cyanidation
testing and this achieved up to 88.3% silver extraction after 75 days. |
| | | |
| ● | High
recoveries achieved during cyanidation tests indicate that silver-bearing minerals within
the sulphide and transition composite samples tested can be considered non-refractory in
nature. |
The results of the two testwork programs are
consistent and suggest that the mineralized materials from the Silver Sand Project would be amenable to processing using conventional
flotation or largescale whole ore cyanidation at atmospheric pressure. A process options trade off study completed in 2022 determined
that a flowsheet including crushing, grinding, cyanidation in agitated tanks and Merrill Crowe zinc precipitation can provide a superior
balance of costs and revenue, resulting in the highest relative IRR. This flowsheet was carried through to the PEA and is summarized
in Section 1.11 and described in Section 17 of this report. There are no known processing factors or deleterious elements that could
have a significant effect on potential economic extraction.
Mineral Resource Estimate
The mineral resource estimate was completed using
556 drillholes on the Silver Sand Project comprising 136,220 m of diamond core and 92,164 assays. Grade interpolation was completed for
silver, lead, zinc, copper, arsenic, and sulphur. Only silver is reported as it is the only economic metal. All estimation utilized ordinary
kriging (OK) except for the 127 small domains which were estimated using the inverse distance squared (ID2 ) method.
The mineralization domains were built by New
Pacific using Leapfrog Geo 4.0 software. The mineralization domains were reviewed and accepted by the qualified person with some changes,
including separating the main domain into two areas based on vein orientation. The qualified person estimated into these domains and
also estimated a background block model that was combined with the domain mineralization to form the final block model.
New Pacific performed 6,297 bulk density measurements
on the core drilled on the Silver Sand Project. As the mineralization is hosted in one rock type, after reviewing the density data, the
qualified person assigned a single bulk density measurement to the block model of 2.54 t/m3.
The pit-constrained mineral resources are reported
for blocks above a conceptual pit shell based on a US$22.50/ounce silver price. There is not a reporting restriction to within the AMC
claim boundary as in the technical report prepared in accordance with NI 43-101 titled “Technical Report – Silver Sand Deposit
Mineral Resource Report” dated May 25, 2020, as amended on June 3, 2020, and with an effective date of January 16, 2020 and prepared
by certain qualified persons associated with AMC Consultants, as an agreement has been reached with COMIBOL in regard to the surrounding
MPC.
The cut-off applied for reporting the pit-constrained
mineral resources is 30 g/t silver. Assumptions made to derive a cut-off grade (COG) included mining costs, processing costs and recoveries
and were obtained from comparable industry situations. The model is depleted for historical mining activities. The assumptions are shown
in Table 6.
Table 4 Cut-off grade
and conceptual pit parameters
| Input | |
Units | |
Value | |
| Silver Price | |
US$/oz Ag | |
| 22.50 | |
| Silver process recovery | |
% | |
| 91 | |
| Payable silver | |
% | |
| 99 | |
| Mining recovery factor | |
% | |
| 100 | |
| Mining cost | |
US$/t mined | |
| 2.60 | |
| Process cost | |
US$/t minable material > COG | |
| 16.00 | |
| G&A cost | |
US$/t minable material > COG | |
| 2.00 | |
| Slope angle | |
degrees | |
| 44 - 47 | |
Source: AMC Mining Consultants (Canada) Ltd., 2022.
Notes:
| ○ | Sustaining
capital cost has not been included. |
| ○ | Measured,
indicated and inferred mineral resources included. |
The mineral resources for the Silver Sand deposit
has been estimated by Dinara Nussipakynova, P.Geo. Principal Geologist of AMC Consultants, who takes responsibility for the estimate.
The effective date of mineral resource estimate is November 30, 2022.
Mineral resources that are not mineral reserves
do not have demonstrated economic viability.
Table 5 Mineral Resource
as of 31 October 2022
Resource category | |
Tonnes (Mt) | | |
Ag (g/t) | | |
Ag (Moz) | |
| Measured | |
| 14.88 | | |
| 131 | | |
| 62.60 | |
| Indicated | |
| 39.38 | | |
| 110 | | |
| 139.17 | |
| Measured & Indicated | |
| 54.26 | | |
| 116 | | |
| 201.77 | |
| Inferred | |
| 4.56 | | |
| 88 | | |
| 12.95 | |
Source: AMC Consultants, 2022
Notes:
| ○ | CIM
Definition Standards (2014) were used for reporting the mineral resources. |
| ○ | The
qualified person is Dinara Nussipakynova, P.Geo. of AMC Consultants. |
| ○ | Mineral
resources are constrained by an optimized pit shell developed at a metal price of US$22.50/oz
Ag and recovery of 91% Ag and COG of 30 g/t Ag. |
| ○ | Drilling
results up to 25 July 2022. |
| ○ | The
numbers may not compute exactly due to rounding. |
| ○ | Mineral
resources that are not mineral reserves do not have demonstrated economic viability. |
The qualified person is not aware of any known
significant factors or risks that might affect access or title, or the right or ability to perform work on the Silver Sand Project, including
permitting and environmental liabilities to which the Silver Sand Project is subject.
In last three years Bolivia experienced a transition
from social turmoil to stability. The government of the current President, elected at the end of 2020, supports and encourages private
and foreign investments in the economic sectors of the country. New laws were approved by Congress to encourage private investments in
the mining sector, for example, Law 1391 (Decree 4579) waives value added tax for import of equipment and vehicles.
Although the country is now generally friendly
to private and foreign investments in the mining sector, risks associated with instability of government caused by political polarization
and visible divisions in the governing party remains.
In addition, local protests and blockages by various social groups may pose unforeseen
instability from time to time. Overall, political and social risks are currently manageable in Bolivia.
There are no mineral reserves on the Silver Sand
Project.
Mining
The Silver Sand Project comprises four open pit
areas — the Main pit, two small northern satellite pits (NP1 and NP2), and one eastern satellite pit (EP1). The open pits are proposed
to be mined using a conventional truck and excavator mining method using 140 t payload trucks and 200 - 260 t excavators. A mining contractor
operation is proposed, with ore and waste to be mined on 10 m benches. A mining recovery of 92% and a mining dilution of 8% at zero grade
has been assumed.
The Lerchs-Grossmann pit optimization algorithm,
as implemented in the Whittle software, was used to define the ultimate pit shell for Silver Sand. The selected pit shells were then
used to produce pit designs and the mining schedule. Pit optimization was allowed to extend outside the AMC claim boundary into the MPC
area to the NE and SW.
In total four phases have been designed in the
Main area (Main 1 to 4) and one for each of the three small satellite pits. Haulage ramps have been designed at 32 m wide for double
lane traffic at a 10% gradient. Single lane ramps of 17 m width were designed for the bottom bench access and the small satellite pits.
A single out-of-pit waste dump has been designed
immediately south-west of the open pits in a natural depression in the topography. The waste dump has been designed to accommodate the
totality of the waste mined from the pits, as well as the disposal of filtered tailings from the plant. Two in-pit dumps have been designed
in the main pit to provide flexibility and costs savings for waste placement. Re-sloping the waste dumps, in-pit dumps, and ROM pad and
placement of topsoil will be carried out post mine closure.
The open pit contains approximately 55.4 Mt of
mineralized material with a grade of 106.6 g/t Ag, and 199.7 Mt of waste material, with an overall waste to mineralized material strip
ratio of 3.60 to 1. The open pit operation includes one year of pre-strip (Year -1) and fourteen-years of production.
To optimize the overall value of the Silver Sand
Project and the sequence of mining, the value for each pit phase was estimated. The value, defined as the indicative undiscounted cashflow
per tonne of mineralized material, accounts for preliminary mining costs, General and Administration (G&A), and processing costs.
The projected value from each source and consideration of practical scheduling constraints provided a basis for the order in which the
pits are scheduled.
The conceptual process feed schedule is summarized
in Table 8. In a typical year 4.0 Mt of ore will be delivered to the process plant. The total annual ex pit material mined peaks at 18.5
Mtpa, before dropping to approximately 13 Mtpa at the end of the open pit mine life.
Table 6 LOM process plant feed schedule
| | |
Total | | |
Yr
- 1 | | |
Yr
1 | | |
Yr
2 | | |
Yr
3 | | |
Yr
4 | | |
Yr
5 | | |
Yr
6 | | |
Yr
7 | | |
Yr
8 | | |
Yr
9 | | |
Yr
10 | | |
Yr
11 | | |
Yr
12 | | |
Yr
13 | | |
Yr
14 | |
| Total
process feed (Mt) | |
| 55.4 | | |
| - | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 3.4 | |
| Ag
(g/t) | |
| 106.6 | | |
| - | | |
| 135.3 | | |
| 135.6 | | |
| 131.5 | | |
| 139.1 | | |
| 103.4 | | |
| 96.6 | | |
| 74.8 | | |
| 72.7 | | |
| 102.3 | | |
| 93.3 | | |
| 113.6 | | |
| 113.3 | | |
| 102.3 | | |
| 74.2 | |
| Mine
to Process (Mt) | |
| 46.6 | | |
| - | | |
| 3.0 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 3.2 | | |
| 4.0 | | |
| 1.3 | | |
| 2.0 | | |
| 4.0 | | |
| 3.5 | | |
| 4.0 | | |
| 4.0 | | |
| 4.0 | | |
| 1.6 | |
| Ag
(g/t) | |
| 116.3 | | |
| - | | |
| 136.1 | | |
| 135.6 | | |
| 131.5 | | |
| 139.1 | | |
| 117.9 | | |
| 96.6 | | |
| 133.5 | | |
| 99.4 | | |
| 102.3 | | |
| 100.0 | | |
| 113.6 | | |
| 113.3 | | |
| 102.8 | | |
| 106.6 | |
| Stockpile
to Process (Mt) | |
| 8.8 | | |
| - | | |
| 1.0 | | |
| - | | |
| - | | |
| - | | |
| 0.8 | | |
| - | | |
| 2.7 | | |
| 2.0 | | |
| - | | |
| 0.5 | | |
| - | | |
| - | | |
| - | | |
| 1.8 | |
| Ag
(g/t) | |
| 55.6 | | |
| - | | |
| 132.7 | | |
| - | | |
| - | | |
| - | | |
| 48.3 | | |
| - | | |
| 45.5 | | |
| 45.4 | | |
| - | | |
| 45.3 | | |
| - | | |
| - | | |
| 45.3 | | |
| 45.3 | |
| Mine
to Stockpile (Mt) | |
| 8.8 | | |
| 1.6 | | |
| 0.8 | | |
| 0.8 | | |
| 1.1 | | |
| 1.5 | | |
| 1.0 | | |
| 1.2 | | |
| 0.1 | | |
| - | | |
| 0.6 | | |
| - | | |
| 0.1 | | |
| - | | |
| - | | |
| - | |
| Ag
(g/t) | |
| 55.6 | | |
| 99.9 | | |
| 45.4 | | |
| 46.0 | | |
| 46.1 | | |
| 47.3 | | |
| 45.5 | | |
| 44.5 | | |
| 42.5 | | |
| - | | |
| 45.0 | | |
| - | | |
| 45.1 | | |
| - | | |
| - | | |
| - | |
Source: AMC Consultants, 2022
Processing and Recovery Operations
Results from two recent metallurgical testwork
programs have been used to select a processing flowsheet for the Silver Sand Project. Interpretation of the testwork has enabled the completion
of a process trade off study, the preparation of preliminary process design criteria and initial equipment selections.
Several processing options were considered for
this PEA, including heap leaching, froth flotation, and agitated tank cyanidation (using carbon or zinc precipitation for silver recovery
from solution). After preliminary trade-off studies to compare the estimated capital cost, operating cost and metallurgical efficiency
of different options, an agitated tank cyanidation process was selected as the PEA base case.
The
selected flowsheet represents a very conventional, low-risk approach to silver extraction, and consists of the following unit operations:
| ● | Run-of-mine
(ROM) receiving, crushing, and crushed rock storage. |
| ● | Stockpile
discharge, grinding via SAG milling, and ball milling. |
| ● | SAG
mill pebble crushing via SAG mill pebble ports, scalping screen, recycle conveyors, and cone crusher. |
| ● | Pre-leach
thickening and cyanide leaching using stirred, oxygen sparged tanks. |
| ● | Liquid
/ solid separation using counter-current decantation (thickeners). |
| ● | Recovery
of silver from pregnant leach solution using a zinc precipitation process followed by drying
and smelting with fluxes to produce silver doré bars. |
| ● | Thickening
and filtration of leach residues. |
| ● | Conveying
of filter cake and long-term storage at the tailing storage area. |
The
base case flowsheet is expected to recover an average of 91% silver into a doré product for export to international markets.
Infrastructure,
Permitting and Compliance Activities
Currently
there is no significant infrastructure in place. As a comprehensive greenfield project, the Silver Sand Project will require the development
of supporting infrastructure. The Silver Sand Project is accessible from Potosi via a 54 km long road made up of a 27 km stretch of the
paved Bolivia National Highway 5 and an all-season gravel road built for mining in the Colavi District.
The
Silver Sand Project is estimated to require approximately 25 to 35 megawatts (MW) of power annually. New Pacific has engaged with
Bolivia’s national power supply companies CNDC and ENDE. A preliminary power supply plan for the future operations has been discussed
and agreed upon. The Company has submitted a power supply application to the Bolivia Ministry of Energy, following the formal procedure
in the country. The Ministry of Energy issued an official letter to the Company acknowledging the application.
Water for domestic use can be obtained from a
small lake, approximately 3.5 km north-west of the Silver Sand Project. Water for drilling can be sourced from nearby drainages. It is
proposed that a water dam will be built up stream from the mine in the narrowest part of the creek to hold the water in a reservoir with
a capacity of about 2.6 million cubic
metres. This will provide water for the mineral processing plant and mining camp and could supply
downstream residents for farming and daily life water requirement if required.
The Filtered Tailings Storage Facility (Filtered TSF of TSF) will be integrated within the waste rock storage area.
The TSF will be fully lined to provide protection against release of potentially contaminated water to the local surface and groundwater
systems.
Accommodation and other infrastructure such as
offices, workshop, warehouse, and laboratory are envisaged to be built close to the processing plant.
New Pacific has successfully obtained environment
permits from local authorities to conduct mineral exploration and drilling activities in the mineral concessions fully owned by the Company
and the MPC areas owned by COMIBOL. There are no known significant factors or risks that might affect access or title, or the right or
ability to perform work on the Silver Sand Project, including permitting and environmental liabilities to which the Silver Sand Project
is subject.
Capital and Operating Costs
The
capital and operating costs estimate have been developed by the following contributors:
| ● | Halyard
Inc: process plant, and plant infrastructure. |
| ● | NewFields:
Tailings storage facility. |
| ● | AMC
Consultants: site infrastructure, and open pit operating mining costs. |
| ● | New
Pacific: owner’s costs, and general and administration costs. |
Costs
are presented in US dollars ($) and are based on prices obtained during the fourth quarter of 2022 (4Q22).
Open
pit mining costs are estimated based on contract mining.
G&A costs include camp accommodation, site
administration compensation for land use, and mine closure costs.
Operating costs for the Silver Sand Project have
been estimated and are summarized in Table 9.
Table 7 Operating costs summary
Description | |
LOM
average cost (US$/t feed) | | |
Total LOM
cost (US$M) | |
| Mining cost | |
| 9.55 | | |
| 529.7 | |
| Processing cost | |
| 14.20 | | |
| 787.3 | |
| Tailings storage cost | |
| 0.65 | | |
| 36.0 | |
| G&A cost | |
| 1.86 | | |
| 103.1 | |
| Total operating cost | |
| 26.26 | | |
| 1,456.1 | |
Source: AMC Consultants, 2022
Note: Totals may
not add up exactly due to rounding. G&A includes mine closure and land use compensation cost.
Capital costs for the Silver Sand Project have
been estimated and are summarized in Table 8.
Owner’s capital costs include relocation / resettlement,
additional studies, permit applications, local community projects, flights, and accommodation.
Table 8 Capital expenditure summary
Description | |
Cost (US$M) | |
| Open pit pre-striping | |
| 47 | |
| Contractor mobilization | |
| 1 | |
| Processing plant | |
| 186 | |
| Tailings facility | |
| 25 | |
| Site infrastructure | |
| 47 | |
| Owner’s cost | |
| 21 | |
| Total capital cost | |
| 327 | |
| Initial capital | |
| 308 | |
| Sustaining capital | |
| 20 | |
Source: AMC Consultants, 2022
Note: Includes direct, indirect, and contingency
costs. Totals may not add up exactly due to rounding.
Economic Analysis
All currency is in US$ unless otherwise stated.
The cost estimate was prepared with a base date of the second half of Year -2 (1 July) and does not include any escalation beyond this
date. For net present value (NPV) estimation, all costs and revenues are discounted at 5% from the base date. The economic model shows
the Silver Sand Project under construction for 1.5 years (Year -2 and Year -1), which is considered development and then in production
for the balance of the projected cash flows, which is considered operating (Years 1 to 14). Metal prices were selected after discussion
with New Pacific and referencing current markets and forecasts in the public domain.
A regular Bolivian corporate income tax rate of
25% is applied. As a mining property, the Silver Sand Project is subject to an additional tax of 12.5%, with a 5% reduction for companies
that produce pure metal products (as is the case with the Silver Sand Project producing silver doré onsite). Within the AMC a 6.0%
royalty is paid based on gross sales. Most of the mineral resources lie within the AMC. Outside the AMC, an additional 6.0% royalty is
to be paid. No other royalties or levies are applicable to the Silver Sand Project.
A high-level economic assessment of the proposed
open pit operation was conducted. The Silver Sand Project is projected to generate approximately $1,106 million (M) pre-tax NPV and $726M
post-tax NPV at 5% discount rate, pre-tax IRR of 52% and post-tax IRR of 39%. A summary of the potential economic outcome of the Silver
Sand Project is presented in Table 9.
Table 9 Summary of potential economic results
Description | |
Unit | |
Value | |
| Total plant feed | |
Kt | |
| 55,441 | |
| Total waste production | |
Kt | |
| 199,653 | |
| Silver grade | |
g/t | |
| 106.6 | |
| Silver recovery | |
% | |
| 91 | |
| Silver price | |
US$/oz | |
| 22.50 | |
| Discount rate | |
% | |
| 5 | |
| Silver payable | |
% | |
| 99 | |
| Payable silver metal | |
Moz | |
| 171.2 | |
| Total net revenue | |
US$M | |
| 3,510 | |
| Total capital costs | |
US$M | |
| 327 | |
| Total operating costs | |
US$M | |
| 1,456 | |
| Mine operating costs | |
US$M | |
| 530 | |
| Process and tails storage operating costs | |
US$M | |
| 823 | |
| General and administrative costs | |
US$M | |
| 103 | |
| Operating cash cost | |
US$/oz Ag | |
| 8.45 | |
| All in sustaining cost | |
US$/oz Ag | |
| 10.42 | |
| Pre-tax payback period | |
Yrs | |
| 1.4 | |
| Post-tax payback period | |
Yrs | |
| 1.9 | |
| Pre-tax NPV | |
US$M | |
| 1,106 | |
| Pre-tax IRR | |
% | |
| 52 | |
| Post-tax NPV | |
US$M | |
| 726 | |
| Post-tax IRR | |
% | |
| 39 | |
Source: AMC Consultants, 2022
Notes:
| o | G&A costs include mine closure and land use compensation cost. |
| o | Cash costs include all operating costs and transportation charges. |
| o | All-in sustaining costs (AISC) include total cash costs, initial capital expenditures and sustaining capital
expenditures. |
The PEA is preliminary in nature and it includes
inferred mineral resources that are considered too speculative geologically to have the economic considerations applied to them that would
enable them to be categorized as mineral reserves. There is no certainty that the PEA will be realized.
For additional information on the Silver Sand
Project, refer to the Silver Sand Technical Report available
under the Company’s profile at www.sedarplus.ca.
CARANGAS
PROJECT
Current
Technical Report
The current technical report for the Carangas
Project is the Carangas Technical Report. The qualified person for the Carangas Technical Report is Mr. Donald Birak, AusIMM Fellow. The
Carangas Technical Report was prepared in accordance with the requirements of NI 43-101 for filing on SEDAR+. The Carangas Technical Report
is available under the Company’s profile at www.sedarplus.ca.
The disclosure set out below regarding the Carangas
Project is based on, without material modification or revision, the disclosure in the Carangas Technical Report unless otherwise indicated.
The Carangas Technical Report is available for review under the Company’s SEDAR+ profile at www.sedarplus.ca. The Carangas Technical Report
contains more detailed information and qualifications than are set out below and readers are encouraged to review the Carangas Technical
Report. This summary is subject to all of the assumptions, information and qualifications set forth therein.
The Carangas Technical Report is the first technical
report that provides an overview of the Carangas Project’s description, geology, and exploration progress.
Description,
Location and Access
Carangas Project is located in western Bolivia
in the Cordillera Occidental geomorphic province. The Carangas Project is easily accessed by paved and well-maintained gravel roads 180
km west- southwest of Oruro, the capital of the Department of Oruro. Driving time is approximately four hours between the Carangas
Project and Oruro.
Carangas Project is currently held by Minera Granville
SRL (“Granville”), a private Bolivian company, via three Prospecting and Exploration Licenses (each, a “PEL”,
and together, the “PELs”) granted by AJAM. The PELs total 40.75 km2 in area. Pursuant to Bolivian law,
foreign entities (i.e. persons and/or companies) are not permitted to hold land within 50 km of Bolivia’s international borders (the “Exclusion
Zone”). As the Carangas Project is located within the Exclusion Zone bordering Chile, the Company has entered into a joint venture
with Granville to develop mining activities at the Carangas Project pursuant to the terms of a mining association agreement between the
Company and Granville (the “Mining Association Agreement”). According to the Mining Association Agreement, the Company
is required to cover 100% of the future expenditures on exploration, mining, development and production activities for the Carangas Project,
and will take 98% economic interest of mining operation when the Carangas Project moves to production. Granville remains the holder of
all licenses, permits and rights granted to it by Bolivian authorities. The agreement has a term of 30 years and is renewable for another
15 years.
The Carangas Project has obtained environmental
permit granted by the government of the Department of Oruro, Bolivia to conduct mineral exploration and drilling activities on the Carangas
Project. Surface right belongs to the local communities and the Carangas Project has obtained permission to build drill roads and drill pads
and other exploration infrastructures during the exploration stage. Agreements or permissions need to be secured from the local communities
to build the mine and other facilities, like a processing plant, tailing and waste storage sites as well as offices and accommodations, when the
Carangas Project moves to mining production.
There are no other known environmental liabilities,
royalties, overrides, back-in rights, payments or other agreements and encumbrances to the Carangas Project, and no other known significant
factors or risks that might affect access or title, or the right or ability to perform work on the Carangas Project.
History
Mining activities in the Carangas district began
in the late 16th century in the Spanish colonial era. During that time, mining activities were mainly on oxide materials and in situ occurrences of native silver.
Currently, widespread ruins of historical mine workings are visible in the East Dome and the West Dome, historically known as San Antonio
and Espiritu Santo hills.
Following the decline of the Spanish colonial era,
mining activities in the Carangas area diminished. In 20th century, ownership of the Carangas Project was transferred between various
international and Bolivian local mining companies. Notably, in the early 20th century, mining operations were revived by Moritz Hochschild
and Federico Alhfeld, the later a German geologist regarded as the father of Bolivian geology, were working on the Carangas Project in 1923.
There has been a very limited amount of historical
mineral exploration at Carangas. The earliest recorded exploration was conducted by COMSUR, a local Bolivian mining company who carried
out channel sampling in underground workings of the San Jose, Orcko Tunku, and San Antonio adits in 1985, and collected over 350 samples
with an average silver grade of 64 g/t Ag. Llicancabur Mining Ltda., a local Bolivia mining company completed a total of 1,001 meters
in 9 reverse circulation holes in 1995 and COMSUR drilled 914.2 meters in 6 diamond drill holes in 2000 (Lopez-Montaño, 2019).
The historical mining production at Carangas is
estimated at approximately one million tonnes. There are no official records of historical mining production details available.
Geological Setting, Mineralization and Deposit
Types
The Carangas Project sits in the South American
Epithermal-Porphyry Belt, featuring a geological sequence that includes Jurassic-aged granite and the volcanic rocks of the Negrillos Formation
and the Carangas Formation of Tertiary age. The Negrillos Formation consists of eroded lavas, tuffs, and volcanic breccias from ancient
volcanic cones. Above the Negrillos Formation, the Carangas Formation includes rhyolitic to rhyodacitic intrusive dykes, lithic tuffs,
phreatomagmatic breccias intercalated with fluvial sediments in upper portion and andesitic volcanoclastic rocks in the lower portion.
Carangas is a silver-gold polymetallic epithermal
deposit of low to intermediate sulfidation character associated with a rhyolitic maar diatreme cutting into volcanic and volcaniclastic country rocks
of Oligocene to Miocene age. The Carangas Project is located at the southwest corner of the Carangas basin, and geomorphologically is
comprised of two prominent hills namely the West Dome and the East Dome, and a fluvial valley in between called the Central Valley. In
addition, there is a small hill known as South Dome near the south end of the Central Valley. On the surface of the Carangas Project, silver-lead-zinc
mineralized vein structures predominantly strike in a West-Northwest direction with steep dips, either sub-vertically or slightly dipping
to the south or the north. In addition, there are some vein sets trending in northerly and northeast directions. The silver-lead-zinc
mineralization has an approximate dimension of up to one thousand meters long by eight hundred meters wide by two hundred meters thick.
At depth below the shallow silver-lead-zinc horizon, mineralization is dominated by gold plus minor amount of silver and copper of an
approximate dimension of four hundred meters long by four hundred meters wide by six hundred meters thick in the lower portion of the
mineralized system.
Based on data obtained from drilling, the area
of West Dome and Central Valley is interpreted as a diatreme structure with a shape of inverted cone filled with breccias of phreatomagmatic
origin and rhyodacitic intrusive dykes. On the top of West Dome, unlithified sandy sediments with horizontal beddings intercalated with
phreatomagmatic breccias of altered rhyolitic and older volcanoclastic clasts are well exposed on surface, evidencing a volcanic maar
environment. The intrusion of magma, once reaching the meteoric water level near surface, led to a series of intense explosive eruption
and fracturing, which in turn generated abundant open spaces including cracks and pores and breccias, favorable for the circulation of
hydrothermal fluids and the deposition of precious and base metals.
Exploration
The Carangas Project underwent a systematic exploration
process, beginning with the Company’s reconnaissance mapping and sampling in 2019. This initial phase was followed by detailed surface-
underground mapping and sampling throughout 2020-2021. Exploration activities continued intermittently in 2022 and concluded with the
sampling and mapping of previously inaccessible historical underground workings.
In 2020, New Pacific collected a total of 383
rock chip samples from 55 outcrops. The samples were taken at two-meter intervals approximately perpendicular to the strike direction
of mineralization, covering a total length of 769 meters. Out of these samples, 117 (9.6%) returned grades ranging from 30 to 2,350 g/t
Ag, with an average grade of 160 g/t Ag.
Additionally, a total of 268 samples were collected
from the dumps of historical mining activities. Among these samples, 233 (86.94%) returned assay results within the range of 30 to 1,950
g/t Ag, with an average grade of 270 g/t Ag.
The Carangas Project features historical underground
mining workings. The Company conducted surveys of all safe and accessible tunnels, totaling 2,381 kilometers, which are all developed
within the Carangas Formation. To date, a total of 425 samples have been collected. Among these samples, 112 (26.35%) returned assay results
ranging from 30 to 1,060 g/t Ag, with an average grade of 122 g/t Ag.
Furthermore, the Company implemented systematic
geophysical surveying programs, including a ground magnetometry survey and an Offset (3D) Bipole-Dipole Induced Polarization (IP)-Magneto-Telluric
(MT) survey, from 2021 to 2023. The known mineralization system correlates well to magnetic lows and IP chargeability highs and multiple
additional anomalies were identified.
Drilling
The Company started exploration drilling in June
2021 and completed resource definition drilling to the end of April 2023. During that period, as many as five rigs were running at Carangas
and a total of 81,145 meters were drilled in 189 holes. Maldonado Exploraciones, a contracted drilling company from La Paz, Bolivia, conducted
all drilling which was roughly broken down to four stages.
Phase I drilling is an exploration discovery drill
program which started on June 21, 2021, and concluded on September 24, 2021. Thirteen holes were completed, totaling 3,790.4 meters to
verify historical drill results and to test the lateral and depth extent of the known mineralization exposed on surface at West Dome and
East Dome.
Phase II drilling commenced on October 6, 2021
and completed on December 17, 2021. In this phase, 22 holes were drilled for a total of 9,420 meters with the objective to test mineralization
covered by young sediments in the Central Valley area. In general, both Phase I and Phase II drilling campaigns were very successful and intersected
broad zones silver polymetallic mineralization near surface and massive gold mineralization at depth in the Central Valley area.
The Phase III drilling was a definition
drill (infill drilling) program, started on February 3, 2022, and completed on December 14, 2022. To rapidly define the mineral resource potential at Carangas,
five drill rigs were employed for the drill program. During this period, a total of 50,311 meters were drilled in 115 holes on a drill
grid of approximately 50 meter spacing and most holes intersected broad mineralization.
Phase IV drilling is a continuation of the 2022
resource definition drill program with the aim to infill areas drilled in 2021-2022 and step out beyond these previously drilled areas.
As of the end of April 2023, a total of 39 holes were completed for a total of 17,623.5 meters in this phase of drilling.
Results from the four drilling campaigns demonstrate that Carangas is
large silver-gold deposit associated with a rhyolitic maar diatreme system of Miocene age with a silver-dominated horizon of up to one
thousand meters long by eight hundred meters wide by two hundred meters thick in the upper part and a gold-dominated horizon of four hundred
meters long by four hundred meters wide by six hundred meters thick in the lower portion of the mineralized system.
Sampling, Analysis and Data Verification
Carangas Project has established comprehensive
quality assurance and quality control (QAQC) procedures and protocols which cover every step of core logging, sampling, preparation and geochemical
analysis, including insertion of certified reference materials (CRMs), blanks, and duplicates into regular sample sequences.
All drill holes were geologically logged and sampled
by New Pacific field personnel at the Company’s facilities in Carangas. Geological logging included detailed recording of lithology, alteration,
mineralization, structure and RQD measurements. Drill cores are stored at a secure core storage at the Company’s Carangas camp for future
check and audit.
The technical staff of the Carangas Project oversees
the delivery of drill core from the Carangas camp to the ALS laboratories in Oruro, Bolivia for sample preparation, and then shipped to
ALS in Lima, Peru for geochemical analysis. ALS Oruro and ALS Lima are part of ALS Global – a commercial laboratory specializing
in analytical geochemistry services, all of which are accredited in accordance with ISO/IES 17025:2017 and are independent of New Pacific.
All drill core, rock chip, and grab samples are
prepared using the following procedures: (1) crush to 70% less than 2 mm; (2) riffle split of 250 g; and (3) pulverize split to more than
85% passing a 75-micron sieve.
Geochemical analysis for silver and other 51 elements
comprised an aqua regia digest with Inductively Coupled Plasma - Mass Spectroscopy finish (ICP- MS) (ALS Code ME-MS41). Over limit samples
returning results of Ag> 100 ppm, Pb >10,000 ppm, Cu > 10,000 ppm and Zn> 10,000 ppm were sent for aqua regia digestion with Inductively
Coupled Plasma - Atomic Emission Spectroscopy finish (ICP-AES or AAS) ore-grade analysis (ALS code OG46). Samples returning Ag assay results
greater than 1,500 g/t were analyzed by fire assay and gravimetric finish (ALS code Ag-GRA21). Samples returning values over 10,000 ppm
Ag were analyzed with fire assay and gravimetric finish (ALS code Ag-CON01).
Fire Assay and Atomic Absorption Spectrometry
(AAS) analysis (ALS code Au-AA25) was performed on selected drill core samples to determine the grades of gold.
To minimize the cost of analysis and the time
of assay turnaround, since February 13, 2023, drill core samples of long holes drilled in the Central Valley were analyzed by Fire Assay-AAS
for gold, and samples of all holes assayed with ore-grade analysis for key elements of Ag, Cu, Pb and Zn by ICP-AES or AAS (OG46).
Overall, the data acquisition, analysis and validation
comply with the best industry practices and are trustworthy for use in, and reporting of, mineral resource estimation.
Mineral Processing and Metallurgical Testing
The Carangas Project staff conducted a preliminary metallurgical
testwork program in 2022, which consisted of scoping-level cyanide leach and flotation testing and was carried out by Bureau Veritas’s Metallurgical
Division in Richmond, British Columbia, Canada. Mineralized materials sampled from rejects of selected drill cores with assays were composited
to five samples based on the type of mineralization and degree of oxidization. Host rock sample is altered volcanoclastic rocks of dacitic-rhyolitic
composition.
Cyanide leach tests for the fresh gold samples
for the sample with less than 1% sulfur content have achieved 98.8% gold recovery and the second gold sample with approximately 3% sulfur
content achieved 98.5% gold recovery.
The near surface, overlying oxidized, oxidized
to semi-oxidized, and fresh silver-lead-zinc samples were tested with cyanide leaching and flotation. The cyanide leach tests achieved
silver recoveries of 84.1%, 85% and 74.3%, respectively. Whole ore flotation tests achieved silver recoveries of 72-77%, 90-94% and 99%,
respectively. Flotation tests for oxidized to semi-oxidized samples also achieved zinc recoveries of 93-95%. Furthermore, 98-99% lead
and 96-97% zinc flotation recoveries were achieved for the fresh silver-lead-zinc sample.
These preliminary test results clearly demonstrate
that high recovery rates can be expected for gold using cyanide leaching and for silver, lead, and zinc through conventional cyanide leaching
and flotation for silver-lead-zinc mineralized materials. There are no known processing factors or deleterious elements that could have
a significant effect on potential economic extraction.
Mineral Resource and Mineral Reserves Estimates
At this stage in its development, no mineral resources
or mineral reserves have been estimated for the Carangas Project.
For additional information on the Carangas
Project, refer to the Carangas Technical Report.
CONSOLIDATED CAPITALIZATION
There have been no material changes in the share
and loan capital of the Company, on a consolidated basis since the date of the Interim Financial Statements, which are incorporated by
reference in this Prospectus.
The applicable Prospectus Supplement will describe
any material change, and the effect of such material change, on the Company’s share and loan capitalization that will result from the
issuance of Securities pursuant to such Prospectus Supplement.
USE OF PROCEEDS
General
The Company has determined that the aggregate total offering price of US$200 million (or the equivalent thereof in
Canadian dollars or any other currencies) during the 25-month period that this Prospectus, including any
amendments thereto, remains effective are reasonable based on its projected use of proceeds over the following 25
months, as follows:
Silver Sand Project environmental permitting, environmental studies and social studies in the amount of
approximately US$5 to US$10 million. Expected to be commenced between September 2023 and
December 2024.
Silver Sand Project pre-feasibility studies and feasibility studies purposes in the amount of approximately
US$3 million. Expected to be commenced between September 2023 and December 2024.
Carangas Project preliminary economic assessment, metallurgical studies, pre-feasibility studies in the
amount of approximately US$3 million. Expected to be commenced between January 2024 and December
2024.
Silver Sand Project land acquisition and agreements with local stakeholders in the amount of approximately
US$15 to US$20 million. Expected to be commenced between January 2024 and December 2024.
Phase one capital investment to build the Silver Sand Project mining, milling and other surface facilities
according to the Silver Sand Technical Report in the amount of approximately US$130 to US$150 million.
Expected to be commenced starting January 2025.
Construction of the development camp at the Silver Sand Project in the amount of approximately US$8 to
US$10 million. Expected to be commenced starting January 2025.
General operating activities in the amount of approximately US$5 to US$10 million. Expected to cover the
25 months period that this Prospectus remains effective.
Accordingly, the Company estimates an allocation of approximately US$169 million to US$206 million over the
next 25 months. Assuming that there are insufficient proceeds from the offering and sale of Securities under this
Prospectus to use the net proceeds as described above, the Company anticipates that it would reduce or delay
expenditures on all of the aforementioned items, other than maintaining minimum operating activities, or would
either issue securities other than the Securities or incur indebtedness. There is no assurance that additional funding
required by the Company would be available if required, and if available, such financing may be highly dilutive to
shareholders of the Company. See "Risk Factors".
The use of proceeds from the sale of Securities
will be described in the applicable Prospectus Supplement relating to a specific offering and sale of Securities. Unless otherwise specified
in a Prospectus Supplement, among other potential uses, the Company may use the net proceeds as described above, for general working capital purposes, for
expansion of existing operations including exploration and acquisitions, and for one or more other general corporate purposes including
to complete corporate acquisitions, to, directly or indirectly, finance future growth opportunities, to fund anticipated negative cash flow from operating activites in future periods and to repay existing or future indebtedness.
More detailed information regarding the use of proceeds and the amount of net proceeds to be used for any such purposes will be set forth
in any applicable Prospectus Supplement. The Company may invest net proceeds which it does not immediately use. Such investments may include
short-term marketable investment grade securities. Management of the Company will retain broad discretion in allocating the net proceeds
of any offering of Securities under this Prospectus and the Company’s actual use of the net proceeds will vary depending on the availability
and suitability of investment opportunities and its operating and capital needs from time to time. All expenses relating to an offering
of Securities and any compensation paid to underwriting dealers or agents as the case may be, will be paid out of the proceeds from the
sale of Securities, unless otherwise stated in the applicable Prospectus Supplement. The Company will not receive any proceeds from the
sale of Securities by any Selling Securityholder.
The Company may, from time to time, issue securities
(including Securities) other than pursuant to this Prospectus.
Negative Cash Flow From Operating Activities
The Company had negative cash flow from operating activities of $4.6 million in the year ended June 30, 2022. The
Company may use a portion of proceeds from the sale of Securities to fund anticipated negative cash flow from
operating activities in future periods.
SELLING SECURITYHOLDERS
This Prospectus may also, from time to time, relate
to the offering of the Securities by way of a secondary offering (each, a “Secondary Offering”) by one or more Selling
Securityholders.
The terms under which Securities may be offered
by Selling Securityholders will be described in the applicable Prospectus Supplement. The Prospectus Supplement for or including any offering
of Securities by Selling Securityholders will include, without limitation, where applicable: (i) the names of the Selling Securityholders;
(ii) the number and type of Securities owned, controlled or directed by each Selling Securityholder; (iii) the number of Securities being
distributed for the accounts of each Selling Securityholder; (iv) the number of Securities to be owned, controlled or directed by each
Selling Securityholder after the distribution and the percentage that number or amount represents out of the total number of outstanding
Securities; (v) whether the Securities are owned by the Selling Securityholders, both of record and beneficially, of record only or beneficially
only; (vi) if a Selling Securityholder purchased any of the Securities held by him, her, them or it in the 12 months preceding the date
of the Prospectus Supplement, the date or dates the Selling Securityholder acquired the Securities; and (vii) if a Selling Securityholder
acquired the Securities held by him, her, them or it in the 12 months preceding the date of the Prospectus Supplement, the cost thereof
to the Selling Securityholder in the aggregate and on a per security basis.
PLAN OF DISTRIBUTION
The Company or any Selling Securityholder may,
from time to time, during the 25-month period that this Prospectus remains valid, offer for sale and issue Securities. The Company or
any Selling Securityholder may sell Securities with
an aggregate total offering price of up to US$200 million (or the equivalent thereof
in Canadian dollars or any other currencies).
The Company or any Selling Securityholder may
sell the Securities, separately or together, to or through underwriters, dealers or agents, and also may sell Securities to one or more
other purchasers directly or through agents. Each Prospectus Supplement will set forth the terms of the offering, including the name or
names of any underwriters, dealers or agents and any fees or compensation payable to them in connection with the offering and sale of
a particular series or issue of Securities, the public offering price or prices of the Securities and the proceeds to the Company or any
Selling Securityholder from the sale of the Securities. Any initial offering price and discounts, concessions or commissions allowed or
paid to dealers may be changed from time to time.
In addition, the Securities may be offered and
issued in consideration for the acquisition of other businesses, assets or securities by the Company or one of its subsidiaries. The consideration
for any such acquisition may consist of Securities separately, a combination of Securities or any combination of, among other things,
Securities, cash and assumption of liabilities.
This Prospectus may qualify one or more “at-the-market distributions” (as defined in NI 44-102). The equity Securities may be sold, from time to
time in one or more transactions at a fixed price or prices which may be changed or at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices, including in transactions that are deemed to be “at-the-market
distributions”, including sales made directly on the TSX, NYSE American or other existing trading markets
for the equity Securities. The prices at which the equity Securities may be offered may vary as between purchasers and during the period
of distribution of the applicable equity Securities. If, in connection with the offering of equity Securities at a fixed price or prices,
the underwriters, dealers or agents have made a bona fide effort to sell all of the equity 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, dealers or agents will be decreased by the amount that the aggregate price paid by purchasers for the equity Securities
is less than the gross proceeds paid by the underwriters, dealers or agents to the Company or any Selling Securityholder.
Underwriters, dealers and agents who participate
in the distribution of the Securities may be entitled under agreements to be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the U.S. Securities Act and Canadian securities legislation, or to contribution
with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. Such underwriters, dealers
and agents may be customers of, engage in transactions with, or perform services for, the Company in the ordinary course of business.
In connection with any offering of Securities,
other than an “at-the-market distribution”, the underwriters, dealers or agents may over-allot or effect transactions which
stabilize or maintain the market price of the Securities offered at a level above that which might otherwise prevail in the open market.
Such transactions, if commenced, may be discontinued at any time.
No underwriter of an “at-the-market distribution”
and no person or company acting jointly or in concert with such an underwriter, may, in connection with such a distribution, enter into
any transaction that is intended to stabilize or maintain the market price of the Securities or Securities of the same class as the Securities
distributed under this Prospectus and Prospectus Supplement, including selling an aggregate number or principal amount of Securities that
would result in an underwriter creating an over-allocation position in the Securities.
Unless otherwise specified in the applicable Prospectus
Supplement, Preferred Shares, Debt Securities, Warrants, Units or Subscription Receipts will not be listed on any securities exchange.
Consequently, unless otherwise specified in the applicable Prospectus Supplement, there is no market through which the Preferred Shares,
Debt Securities, Warrants, Units or Subscription Receipts may be sold and purchasers may not be able to resell any such Securities purchased
under this Prospectus. This may affect the pricing of the Preferred Shares, Debt Securities, Warrants, Units or Subscription Receipts
in the secondary market, the transparency and availability of trading prices, the liquidity of such Securities and the extent of issuer
regulation. No assurances can be given that a market for trading in Securities of any series or issue will develop or as to the liquidity
of any such market, whether or not the Securities are listed on a securities exchange. See “Risk Factors”.
DESCRIPTION OF
SECURITIES
The following is a brief summary of certain general
terms and provisions of the Securities as at the date of this Prospectus. The summary does not purport to be complete and is indicative
only. The specific terms of any Securities to be offered under this Prospectus, and the extent to which the general terms described in
this Prospectus apply to such Securities, will be set forth in the applicable Prospectus Supplement. Moreover, a Prospectus Supplement
relating to a particular offering of Securities may include terms pertaining to the Securities being offered thereunder that are not within
the terms and parameters described in this Prospectus.
Common Shares
The Company is
authorized to issue an unlimited amount of Common Shares, without par value, of which, as of August 15, 2023, a total of 157,585,007 Commons Shares are issued and outstanding. There are also options outstanding to purchase up to 3,953,167 Common Shares and 1,803,325 restricted share
units of the Company outstanding as of August 15, 2023. Holders of Common Shares are entitled to one vote per Common Share at all meetings
of the Company’s shareholders, to receive dividends as and when declared by the directors of the Company and to receive a pro rata
share of the assets of the Company available for distribution to the shareholders in the event of the liquidation, dissolution or winding-up
of the Company. There are no pre-emptive, conversion or redemption rights attached to the Common Shares.
Preferred Shares
The Company is not currently authorized to issue
Preferred Shares. The Board may determine to designate and create shares of another class or series of shares, including as Preferred
Shares. The Board may fix, before the issuance thereof, the number of Preferred Shares of each series, the designation, rights, privileges,
restrictions and conditions attaching to the Preferred Shares of each series, including, without limitation, any voting rights, any right
to receive dividends (which may be cumulative or non-cumulative and variable or fixed) or the means of determining such dividends, the
dates of payment thereof, any terms and conditions of redemption or retraction, any exchange or conversion rights, and any rights on the
liquidation, dissolution or winding-up of the Company, any sinking fund or other provisions.
The Preferred Shares of each series may, with
respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, rank on a parity with the Preferred Shares of every other series and be entitled to preference over
the Common Shares. If any amount of cumulative dividends (whether or not declared) or declared non-cumulative dividends or any amount
payable on any such distribution of assets constituting a return of capital in respect of the Preferred Shares of any series is not paid
in full, the Preferred Shares of such series shall participate ratably with the Preferred Shares of every other series in respect of
all such dividends and amounts.
The particular terms and provisions of a series
of Preferred Shares offered pursuant to an accompanying Prospectus Supplement will be described in the applicable Prospectus Supplement.
One or more series of Preferred Shares may be sold separately or together with other Securities under this Prospectus, or on conversion
or exchange of any such Securities.
Description of Debt Securities
This section describes the general terms that
will apply to any Debt Securities issued pursuant to this Prospectus. Debt Securities may be offered separately or in combination with
one or more other securities of the Company. The Debt Securities may be issued in one or more series under an indenture (the “Debt
Indenture”) to be entered into between the Company and one or more trustees (the “Trustee”) that will be named
in a Prospectus Supplement for a series of Debt Securities. To the extent applicable, the Debt Indenture will be subject to and governed
by the United States Trust Indenture Act of 1939, as amended. A copy of the form of the Debt Indenture to be entered into has been or
will be 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 Debt Indenture 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 Debt Indenture. The specific terms of the
Debt Securities, and the extent to which the general terms
described in this section apply to those Debt Securities, will be set forth
in the applicable Prospectus Supplement. This description may include, but may not be limited to, any of the following, if applicable:
| ● | the
title of the Debt Securities; |
| ● | 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;
|
| ● | the
terms and conditions under which the Company 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 the Company may redeem the Debt Securities, in whole or in
part, at its option; |
| ● | the
covenants applicable to the Debt Securities; |
| ● | the
terms and conditions for any conversion or exchange of the Debt Securities for any other
securities; |
| ● | the
extent and manner, if any, to which payment on or in respect of the Debt Securities of the
series will be senior or will be subordinated to the prior payment of other liabilities and
obligations of the Company; |
| ● | whether
the Debt Securities will be secured or unsecured; |
| ● | whether
the Debt Securities will be issuable in the form of global securities (“Global Securities”),
and, if so, the identity of the depositary for such Global Securities; |
| ● | the
denominations in which Debt Securities will be issuable, if other than denominations of US$1,000
or integral multiples of US$1,000; |
| ● | 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; |
| ● | if
other than United States dollars, 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 United States 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; and |
| ● | any
other terms, conditions, rights or preferences of the Debt Securities which apply solely
to the Debt Securities. |
If the Company denominates the purchase price
of any of the Debt Securities in a currency or currencies other than United States dollars or a non-United States dollar unit or units,
or if the principal of and any premium and interest on any Debt Securities is payable in a currency or currencies other than United States
dollars or a non-United States dollar unit or units, the Company will provide investors with information on the restrictions, elections,
general tax
considerations, specific terms and other information with respect to that issue of Debt Securities and such non-United States
dollar currency or currencies or non-United States dollar unit or units in the applicable Prospectus Supplement. 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 terms on
which a series of Debt Securities may be convertible into or exchangeable for Common Shares or other securities 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 Company, 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, 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.
The Company may, from time to time, issue Debt
Securities and incur additional indebtedness other than through the issue of Debt Securities pursuant to this Prospectus.
Warrants
The following description sets forth certain general
terms and provisions of Warrants that may be issued hereunder and is not intended to be complete. The Warrants may be offered separately
or together with other Securities, as the case may be. Warrants may be issued at various times under one or more warrant agreements or
warrant indentures to be entered into by the Company and one or more banks or trust companies acting as warrant agent.
The statements made in this Prospectus relating
to any warrant indenture 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, the provisions of the applicable warrant
indenture, if any. Potential purchasers of Warrants should refer to the warrant indenture, if any, relating to the specific Warrants being
offered for the complete terms of the Warrants. A copy of any warrant indenture, if any, relating to an offering or Warrants will be filed
by the Company with the securities regulatory authorities in applicable Canadian offering jurisdictions and with the SEC after the Company
has entered into it.
The particular terms of each issue of Warrants
will be described in the related Prospectus Supplement. This description may include, but is not limited to, any of the following, if
applicable:
| ● | the
designation and aggregate number of Warrants; |
| ● | the
price at which the Warrants will be offered; |
| ● | the
designation, number and terms of the Securities purchasable upon exercise of the Warrants,
and procedures that will result in the adjustment of those numbers; |
| ● | the
date on which the right to exercise the Warrants will commence and the date on which the
right will expire, including any “early termination” or acceleration provisions; |
| ● | the
exercise price of the Warrants; |
| ● | if
the Warrants are issued as a Unit with another Security, the date, if any, on and after which
the Warrants and the other Security will be separately transferable; |
| ● | any
minimum or maximum amount of Warrants that may be exercised at any one time; |
| ● | any
terms, procedures and limitations relating to the transferability, exchange or exercise of
the Warrants; |
| ● | whether
the Warrants will be subject to redemption or call and, if so, the terms of such redemption
or call provisions; |
| ● | provisions
as to modification, amendment or variation of the warrant indenture or any rights or terms
of such Warrants, including upon any subdivision, consolidation, reclassification or other
material change of the Common Shares or other Securities into which the Warrants are exercisable,
any other reorganization, amalgamation, merger or sale of all or substantially all of the
Company’s assets or any distribution of property or rights to all or substantially
all of the holders of Common Shares; |
| ● | whether
the Company will apply to list the Warrants on any securities exchange; |
| ● | the
material United States and Canadian federal income tax consequences of owning the Warrants;
and |
| ● | any
other material terms and conditions of the Warrants. |
Warrant
certificates will be exchangeable for new Warrant certificates of different denominations at the office indicated in the Prospectus Supplement.
Prior to the exercise of their Warrants, holders of Warrants will not have any of the rights of holders of the Securities underlying
the Warrants. The Company may amend the warrant indenture(s) and the Warrants, without the consent of the holders of the Warrants, in
the manner set forth in the applicable indenture(s) or certificates, including to cure any ambiguity, to cure, correct or supplement
any defective or inconsistent provision or in any other manner that will not prejudice the rights of the holders of outstanding Warrants,
as a group.
Units
The following description sets forth certain general
terms and provisions of the Units that may be issued hereunder and is not intended to be complete. Units may be issued at various times
comprising any combination of the other Securities described in this Prospectus. Each Unit will be issued so that the holder of such Unit
is also the holder of each Security composing such Unit. Therefore, the holder of a Unit will have the rights and obligations of a holder
of each included Security (except in some cases where the right to transfer an included Security of a Unit may not occur without the transfer
of the other included Security comprising part of such Unit). The Units may be offered separately or together with other Securities, as
the case may be.
The particular
terms of each issue of Units will be described in the related Prospectus Supplement. This description may include, but is not limited
to, any of the following, if applicable:
| ● | the
designation and aggregate number of Units; |
| ● | the
price at which the Units will be offered; |
| ● | the
designation and terms of the Securities comprising the Units, including whether and under
what circumstances those Securities may be held or transferred separately; |
| ● | any
provisions for the issuance, payment, settlement, transfer or exchange of the Units or of
the Securities comprising the Units; |
| ● | whether
the Units will be issued in fully registered or global form; |
| ● | whether
the Company will apply to list the Units on any securities exchange; |
| ● | the
material United States and Canadian federal income tax consequences of owning the Units,
including how the purchase price paid will be allocated among the Securities comprising the
Units; and |
| ● | any
other material terms and conditions of the Units. |
Subscription Receipts
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. Subscription Receipts may
be issued at various times which will entitle holders thereof to receive, upon satisfaction of the Release Conditions and for no additional
consideration, Common Shares, Preferred Shares, Debt Securities, Warrants, Units or any combination thereof. The Subscription Receipts
may be offered separately or together with other Securities, as the case may be. 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
Company 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. The subscription proceeds from an offering of Subscription Receipts will be held in escrow by the Escrow Agent pending the
completion of the transaction or the termination time (the time at which the escrow terminates regardless of whether the transaction or
event has occurred). If underwriters, dealers or agents are used in the sale of any Subscription Receipts, one or more of such underwriters,
dealers or agents may also be a party to the Subscription Receipt Agreement governing the Subscription Receipts sold to or through such
underwriter, dealer or agent.
The statements made in this Prospectus relating
to any Subscription Receipt Agreement and Subscription Receipts 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, the provisions
of the applicable Subscription Receipt Agreement. Purchasers of Subscription Receipts should refer to the Subscription Receipt Agreement
relating to the specific Subscription Receipts being offered for the complete terms of the Subscription Receipts. A copy of any Subscription
Receipt Agreement relating to an offering of Subscription Receipts will be filed by the Company with the securities regulatory authorities
in the applicable Canadian offering jurisdictions and with the SEC after the Company has entered into it.
The particular terms of each issue of Subscription
Receipts will be described in the related Prospectus Supplement. This description
may include, but is not limited to, any of the following, if applicable:
| ● | the
designation and aggregate number of the Subscription Receipts being offered; |
| ● | the
price at which the Subscription Receipts will be offered; |
| ● | the
designation, number and terms of Common Shares, Preferred Shares, Debt Securities, Warrants,
Units or any combination thereof to be received by the holders of the Subscription Receipts
upon satisfaction of the Release Conditions, and any procedures that will result in the adjustment
of those numbers; |
| ● | the
identity of the Escrow Agent; |
| ● | the
conditions (the “Release Conditions”) that must be met in order for holders
of the Subscription Receipts to receive, for no additional consideration, Common Shares,
Preferred Shares, Debt Securities, Warrants, Units or any combination thereof; |
| ● | the
procedures for the issuance and delivery of Common Shares, Preferred Shares, Debt Securities,
Warrants, Units or any combination thereof to holders of the Subscription Receipts upon satisfaction
of the Release Conditions; |
| ● | whether
any payments will be made to holders of the Subscription Receipts upon delivery of Common
Shares, Preferred Shares, Debt Securities, Warrants, Units or any combination thereof upon
satisfaction of the Release Conditions; |
| ● | the
terms and conditions under which the Escrow Agent will hold all or a portion of the gross
proceeds from the sale of the Subscription Receipts, together with interest and income earned
thereon (collectively, the “Escrowed Funds”), pending satisfaction of
the Release Conditions; |
| ● | the
terms and conditions under which the Escrow Agent will release all or a portion of the Escrowed
Funds to the Company upon satisfaction of the Release Conditions and if the Subscription
Receipts are sold to or through underwriters, dealers or agents, the terms and conditions
under which the Escrow Agent will release a portion of the Escrowed Funds to such underwriters,
dealers or agents in payment of all or a portion of their fees or commissions in connection
with the sale of the Subscription Receipts; |
| ● | procedures
for the refund by the Escrow Agent to holders of the 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; |
| ● | any
contractual right of rescission to be granted to initial purchasers of the 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; |
| ● | any
entitlement of the Company to purchase the Subscription Receipts in the open market by private
agreement or otherwise; |
| ● | if
the Subscription Receipts are issued as a Unit with another Security, the date, if any, on
and after which the Subscription Receipts and the other Security will be separately transferable; |
| ● | whether
the Company will issue the Subscription Receipts as Global Securities and, if so, the identity
of the depository for the Global Securities; |
| ● | whether
the Company will issue the Subscription Receipts as bearer securities, as registered securities
or both; |
| ● | 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 Common Shares, Preferred Shares, Debt Securities, Warrants or
Units, any other reorganization, amalgamation, merger or sale of all or substantially all
of the Company’s assets or any distribution of property or rights to all or substantially
all of the holders of Common Shares; |
| ● | whether
the Company will apply to list the Subscription Receipts on any securities exchange; |
| ● | the
material United States and Canadian federal income tax consequences of owning the Subscription
Receipts; and |
| ● | any
other material terms and conditions of the Subscription Receipts. |
The
holders of Subscription Receipts will not be, and will not have the rights of, shareholders of the Company. Holders of Subscription Receipts
are entitled only to receive Common Shares, Preferred Shares, Debt Securities, Warrants, Units or any combination thereof on exchange
or conversion 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.
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 Company (and, if the Subscription Receipts are sold to or through underwriters, dealers or agents, a portion
of the Escrowed Funds may be released to such underwriters, dealers 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.
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 votes 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 the Company may amend the Subscription Receipt Agreement and the Subscription Receipts, without the consent of the holders of the
Subscription Receipts, to cure any ambiguity, to cure, correct or supplement any defective or inconsistent provision, or in any other
manner that will not materially and adversely affect the interests of the holders of outstanding Subscription Receipts or as otherwise
specified in the Subscription Receipt Agreement.
CERTAIN FEDERAL
INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement may describe
certain 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 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 subject to United States federal taxation. Investors should read the 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.
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 pursuant to this Prospectus of Preferred
Shares or Debt Securities having a maturity in excess of one year pursuant to such Prospectus Supplement.
PRIOR SALES
A description of prior sales of the Securities
will be provided as required in each Prospectus Supplement to this Prospectus.
MARKET FOR SECURITIES
The Common Shares are listed and posted for trading
on the TSX in Canada under the symbol “NUAG” and are listed on the NYSE American in the United States under the symbol “NEWP”.
Trading price and volume of the Common Shares will be provided as required in each Prospectus Supplement to this Prospectus.
RISK FACTORS
Before deciding to invest in any Securities, prospective
purchasers of the Securities should consider carefully the risk factors and the other information contained in and incorporated by reference
into this Prospectus and any applicable Prospectus Supplement relating to a specific offering of Securities. An investment in the Securities
offered hereunder is speculative and involves a high degree of risk. Information regarding the risks affecting the Company and its business
is provided in the documents incorporated by reference in this Prospectus, including in the Company’s most recent annual information form
under the heading “Item 4.2 - Risk Factors”. Additional risks and uncertainties not known to the Company or that management
currently deems immaterial may also impair the Company’s business, financial condition, results of operations or prospects. See “Documents
Incorporated by Reference”.
No Assurance of Active or Liquid Market
No assurance can be given that an active or liquid
trading market for the Common Shares will be sustained. If an active or liquid market for the Common Shares fails to be sustained, the
prices at which such shares trade may be adversely affected. Whether or not the Common Shares will trade at lower prices depends on many
factors, including
the liquidity of the Common Shares, the markets for similar securities, general economic conditions and the Company’s
financial condition, historic financial performance and future prospects.
There is no public market for the Preferred Shares,
Debt Securities, Warrants, Units or Subscription Receipts and, unless otherwise specified in the applicable Prospectus Supplement, the
Company does not intend to apply for listing of such Securities on any securities exchange. If the Preferred Shares, Debt Securities,
Warrants, Units or Subscription Receipts are traded after their initial issue, they may trade at a discount from their initial offering
prices depending on the market for similar securities and other factors including general economic conditions and the Company’s financial
condition. There can be no assurance as to the liquidity of the trading market for the Preferred Shares, Debt Securities, Warrants, Units
or Subscription Receipts or that a trading market for these securities will develop.
Public Markets and Share Prices
The market price of the Common Shares and any
other Securities offered hereunder that become listed and posted for trading on the TSX, NYSE American or any other stock exchange could
be subject to significant fluctuations in response to variations in the Company’s financial results or other factors. In addition, fluctuations
in the stock market may adversely affect the market price of the Common Shares and any other Securities offered hereunder that become
listed and posted for trading on a stock exchange regardless of the financial performance of the Company. Securities markets have also
experienced significant price and volume fluctuations from time to time. In some instances, these fluctuations have been unrelated or
disproportionate to the financial performance of issuers. Market fluctuations may adversely impact the market price of the Common Shares
and any other Securities offered hereunder that become listed and posted for trading on a stock exchange. There can be no assurance of
the price at which the Common Shares that become listed and posted for trading on a stock exchange will trade.
Additional Issuances and Dilution
The Company may issue and sell additional securities
of the Company from time to time. The Company cannot predict the size of future issuances of securities of the Company or the effect,
if any, that future issuances and sales of securities will have on the market price of any securities of the Company that are issued and
outstanding from time to time. Sales or issuances of substantial amounts of securities of the Company, or the perception that such sales
could occur, may adversely affect prevailing market prices for the securities of the Company that are issued and outstanding from time
to time. With any additional sale or issuance of securities of the Company, holders will suffer dilution with respect to voting power
and may experience dilution in the Company’s earnings per share. Moreover, this Prospectus may create a perceived risk of dilution resulting
in downward pressure on the price of the Company’s issued and outstanding Common Shares, which could contribute to progressive declines
in the prices of such securities.
Discretion Regarding Use of Proceeds
Management of the Company will have broad discretion
with respect to the application of net proceeds received by the Company from the sale of Securities under this Prospectus or a future
Prospectus Supplement and may elect to allocate proceeds in any way that it believes is in the Company’s best interests. Securityholders
may not agree with the manner in which the Board and/or management chooses to allocate and spend such net proceeds. The failure by the
Board and/or management to apply these funds effectively could have a material adverse effect on the Company’s business, financial condition,
results of operations or cash flows.
Negative Cash Flow from Operating Activities
The Company has not yet achieved positive operating
cash flow, and the Company will continue to experience negative cash flow from operations in the foreseeable future. The Company has incurred
net losses in the past and may incur losses in the future unless it can derive sufficient revenues from its business. Such future losses
could have an adverse effect on the market price of the Common Shares, which could cause investors to lose part or all of their investment.
EXEMPTION FROM
NATIONAL INSTRUMENT 44-102
Pursuant to a decision of the Autorité
des marchés financiers dated July 27, 2023, the Company was granted a permanent exemption from the requirement to translate into
French this Prospectus as well as the documents incorporated by reference therein and any Prospectus Supplement to be filed in relation
to an “at-the-market” distribution. This exemption is granted on the condition that this Prospectus and any Prospectus Supplement
(other than in relation to an “at-the-market” distribution) be translated into French if the Company offers Securities to Quebec
purchasers in connection with an offering other than in relation to an “at-the-market” distribution.
INTERESTS OF EXPERTS
Deloitte LLP is independent with respect to the
Company within the meaning of the rule of professional conduct of the Chartered Professional Accountants of British Columbia and within
the meaning of the U.S. Securities Act and the applicable rules and regulations thereunder adopted by the SEC and the Public Company Accounting
Oversight Board (United States).
The Silver Sand Technical Report Authors prepared
the Silver Sand Technical Report. To management’s knowledge, the Silver Sand Technical Report Authors do not have any registered or beneficial
interests, direct or indirect, in any securities or other property of the Company (or of any of its associates or affiliates).
Donald Birak, AusIMM Fellow, prepared the Carangas
Technical Report. To the management’s knowledge, Mr. Birak does not have any registered or beneficial interests, direct or indirect, in any
securities or other property of the Company (or of any of its associates or affiliates).
LEGAL MATTERS
Certain legal matters in connection with the offering
will be passed upon on behalf of the Company by Bennett Jones LLP, Vancouver, British Columbia, as to Canadian legal matters, and Dorsey
& Whitney LLP, Seattle, Washington, as to United States legal matters. In addition, certain legal matters in connection with any offering
of Securities will 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, as the case may be.
ENFORCEABILITY
OF CERTAIN CIVIL LIABILITIES
The Company is governed by the laws of British
Columbia and its principal place of business is outside the United States. Some of the directors and officers of the Company and the experts
named herein or in the documents incorporated by reference herein are resident outside of the United States and some or all of the Company’s
assets and the assets of such persons are located outside of the United States. Consequently, it may be difficult for United States investors
to effect service of process within the United States on the Company, its directors or officers or such experts, or to realize in the
United States on judgments of courts of the United States predicated on civil liabilities under the U.S. Securities Act. Investors should
not assume that Canadian courts would enforce judgments of United States courts obtained in actions against the Company or such persons
predicated on the civil liability provisions of the United States federal securities laws or the securities or “blue sky” laws
of any state within the United States or would enforce, in original actions, liabilities against the Company or such persons predicated
on the United States federal securities or any such state securities or “blue sky” laws. A final judgment for a liquidated
sum in favour of a private litigant granted by a United States court and predicated solely upon civil liability under United States federal
securities laws would, subject to certain exceptions identified in the law of individual provinces of Canada, likely be enforceable in
Canada if the United States court in which the judgment was obtained had a basis for jurisdiction in the matter that would be recognized
by the domestic Canadian court for the same purposes. There is a significant risk that a given Canadian court may not have jurisdiction
or may decline jurisdiction over a claim based solely upon United States federal securities law on application of the conflict of laws
principles of the province in Canada in which the claim is brought.
The Company filed with the SEC, concurrently
with the Registration Statement, an appointment of agent for service of process on Form F-X. Under the Form F-X, the Company appointed
Puglisi and Associates, with an address at 850 Library Avenue, Suite 204, Newark, DE 19711, as its agent for service of process in the
United States in connection with any investigation or administrative proceeding conducted by the SEC, and any civil
suit or action brought
against or involving the Company in a United States court arising out of or related to or concerning the offering of Securities under
the Registration Statement.
ENFORCEMENT OF
JUDGEMENTS AGAINST FOREIGN PERSONS OR COMPANIES
Each of Dr. Rui Feng, director and Chief Executive
Officer of the Company, and Dr. Peter Megaw, director of the Company, reside outside of Canada and has appointed New Pacific Metals Inc.
at 1750-1066 West Hastings Street, Vancouver, British Columbia, Canada V6E 3X1 as their agent for service of process. 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.
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS
Indemnification of Directors and Officers and
Controlling Persons.
The Registrant is subject
to the provisions of the Business Corporations Act (British Columbia) (the “Act”).
Under Section 160 of the Act,
an individual who:
| ● | is or was a director or officer of the Registrant, |
| ● | is or was a director or officer of another corporation (i)
at a time when the corporation is or was an affiliate of the Registrant, or (ii) at the request of the Registrant, or |
| ● | at the request of the Registrant, is or was, or holds or
held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity, |
and 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 Act 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 Act,
the Registrant must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by the eligible
party in respect of that proceeding if the eligible party (a) has not been reimbursed for those expenses, and (b) is wholly successful,
on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding.
Under Section 162 of the Act
and subject to Section 163 of the Act, the Registrant may pay, as they are incurred in advance of the final disposition of an eligible
proceeding, the expenses actually and reasonably incurred by an eligible party in respect of that proceeding; provided the Registrant
must not make such payments unless it first receives from the eligible party a written undertaking that, if it is ultimately decided that
the payment of expenses is prohibited by Section 163, the eligible party will repay the amounts advanced.
Under Section 163 of the Act,
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 Act, as the case may be, if any
of the following circumstances apply:
| ● | if the indemnity or payment is made under an earlier agreement
to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, the Registrant was prohibited
from giving the indemnity or paying the expenses by its articles; |
| ● | if the indemnity or payment is made otherwise than under
an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, the Registrant is prohibited
from giving the indemnity or paying the expenses by its articles; |
| ● | if, in relation to the subject matter of the eligible proceeding,
the eligible party did not act honestly and in good faith with a view to the best interests of the Registrant or the associated corporation,
as the case may be; or |
| ● | in the case of an eligible proceeding other than a civil
proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which
the proceeding was brought was lawful. |
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 Act, as the case may be, in respect of the proceeding.
Under Section 164 of the Act,
and despite any other provision of Part 5, Division 5 of the Act and whether or not payment of expenses or indemnification has been sought,
authorized or declined under Part 5, Division 5 of the Act, the Supreme Court of British Columbia may, on application of the Registrant
or an eligible party, do one or more of the following things:
| ● | order the Registrant to indemnify an eligible party against
any liability incurred by the eligible party in respect of an eligible proceeding; |
| ● | order the Registrant to pay some or all of the expenses incurred
by an eligible party in respect of an eligible proceeding; |
| ● | order the enforcement of, or payment under, an agreement
of indemnification entered into by the Registrant; |
| ● | order the Registrant to pay some or all of the expenses actually
and reasonably incurred by any person in obtaining an order under Section 164 of the Act; or |
| ● | make any other order the court considers appropriate. |
Section 165 of the Act 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, our company or an associated
corporation.
The foregoing description
is qualified in its entirety by reference to the Act.
Under the articles of the
Registrant, subject to the provisions of the Act, the Registrant must indemnify a director or former director of the Registrant, by reason
of the fact he or she is or was a director of the Registrant or was serving at the request of the Registrant as a director, officer, employee
or agent of any other corporation, partnership, joint venture, trust or other enterprise, and the heirs and legal personal representatives
of all such persons 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 is deemed to have contracted with the Registrant on the terms of the indemnity contained in the Registrant’s articles. The
Registrant may indemnify an officer of the Company or any employee or agent of the Company or of a corporation and such persons’ heirs
and personal representatives subject to any restrictions in the Act. The failure of a director or officer of the Registrant to comply
with the Act or the articles of the Registrant does not invalidate any indemnity to which such person is entitled under the Registrant’s
articles.
Under the articles of the
Registrant and subject to the Act, the Registrant may purchase and maintain insurance for the benefit of any eligible party against any
liability incurred by such party as a director, officer, employee or agent or person who holds or held an equivalent position.
The Registrant maintains directors’
and officers’ liability insurance. The policies provide a maximum coverage in any one policy year of $25 million in annual claims (subject
to a deductible of $1 million per claim, payable by the Registrant). The primary policy insures (a) the directors and officers of the
Registrant against losses arising from claims against them for certain of their actual or alleged wrongful acts (as defined within the
insurance policy), (b) the Registrant for payments made pursuant to the Registrant’s indemnification of its directors and officers, and
(c) the Registrant when it is directly named in a securities claim. The excess policy insures the directors and officers of the Registrant
against losses arising from claims against them for certain of their actual or alleged wrongful acts (as defined within the insurance
policy). The premiums for the policies are not allocated between directors and officers as separate groups.
Insofar as indemnification
for liabilities arising under the United States Securities Act of 1933 may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the U.S. Securities and Exchange
Commission such indemnification is against public policy as expressed in the United States Securities Act of 1933 and is therefore unenforceable.
EXHIBITS
| Exhibit |
|
Description |
| |
|
|
| 4.1 |
|
Annual information form for the fiscal year ended June 30, 2022 dated September 28, 2022 (incorporated by reference from the Registrant’s Annual Report on Form 40-F filed with the Commission on September 28, 2022) |
| |
|
|
| 4.2 |
|
Audited consolidated financial statements as of and for the years ended June 30, 2022 and 2021 (incorporated by reference from the Registrant’s Annual Report on Form 40-F filed with the Commission on September 28, 2022) |
| |
|
|
| 4.3 |
|
Management’s discussion and analysis for the year ended June 30, 2022 (incorporated by reference from the Registrant’s Annual Report on Form 40-F filed with the Commission on September 28, 2022) |
| |
|
|
| 4.4 |
|
Unaudited condensed consolidated interim financial statements for the three and nine months ended March 31, 2023 and 2022, together with the notes thereto (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on May 9, 2023) |
| |
|
|
| 4.5 |
|
Management’s discussion and analysis for the three and nine months ended March 31, 2023 (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on May 9, 2023) |
| |
|
|
| 4.6 |
|
Management information circular dated October 24, 2022 prepared in connection with the annual general meeting of shareholders held on December 2, 2022 (“2022 AGM”) (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on November 2, 2022) |
| |
|
|
| 4.7 |
|
Material change report dated February 17, 2023 with respect to the Company filing an independent Preliminary Economic Assessment (“PEA”) technical report for its Silver Sand project located in Potosi, Bolivia, with an effective date of November 30, 2022 (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on July 27, 2023) |
| |
|
|
| 4.8 |
|
Material change report dated December 6, 2022 with respect to the appointment of Peter Megaw and Dickson Hall to the board of directors of the Company (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on December 7, 2022) |
| |
|
|
| 4.9 |
|
Material change report dated December 2, 2022 with respect to the Company filing an independent NI 43-101 technical report for its Carangas project located in Oruro, Bolivia, with an effective date of June 16, 2022 (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on Decmeber 2, 2022) |
| |
|
|
| 5.1 |
|
Consent of Deloitte LLP |
| |
|
|
| 5.2 |
|
Consent of Wayne Rogers |
| |
|
|
| 5.3 |
|
Consent of Mo Molavi |
| |
|
|
| 5.4 |
|
Consent of John Morton Shannon |
| |
|
|
| 5.5 |
|
Consent of Dinara Nussipakynova |
| |
|
|
| 5.6 |
|
Consent of Andrew Holloway |
| |
|
|
| 5.7 |
|
Consent of Leon Botham |
| |
|
|
| 5.8 |
|
Consent of Donald Birak |
| |
|
|
| 5.9 |
|
Consent of Alex Zhang |
| |
|
|
| 6.1* |
|
Powers of Attorney (included on the signature page of this Registration Statement) |
| |
|
|
| 7.1 |
|
Form of Indenture |
| |
|
|
| 107* |
|
Filing Fee Table |
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 said securities.
Item 2. Consent to Service of Process.
| (a) | The Registrant has previously filed with the SEC a written irrevocable consent and power of attorney on Form F-X. |
| (b) | Any change to the name or address of the Registrant’s agent
for service shall be communicated promptly to the SEC by amendment to Form F-X referencing the file number of this Registration Statement. |
EXHIBIT INDEX
| Exhibit |
|
Description |
| |
|
|
| 4.1 |
|
Annual information form for the fiscal year ended June 30, 2022 dated September 28, 2022 (incorporated by reference from the Registrant’s Annual Report on Form 40-F filed with the Commission on September 28, 2022) |
| |
|
|
| 4.2 |
|
Audited consolidated financial statements as of and for the years ended June 30, 2022 and 2021 (incorporated by reference from the Registrant’s Annual Report on Form 40-F filed with the Commission on September 28, 2022) |
| |
|
|
| 4.3 |
|
Management’s discussion and analysis for the year ended June 30, 2022 (incorporated by reference from the Registrant’s Annual Report on Form 40-F filed with the Commission on September 28, 2022) |
| |
|
|
| 4.4 |
|
Unaudited condensed consolidated interim financial statements for the three and nine months ended March 31, 2023 and 2022, together with the notes thereto (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on May 9, 2023) |
| |
|
|
| 4.5 |
|
Management’s discussion and analysis for the three and nine months ended March 31, 2023 (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on May 9, 2023) |
| |
|
|
| 4.6 |
|
Management information circular dated October 24, 2022 prepared in connection with the annual general meeting of shareholders held on December 2, 2022 (“2022 AGM”) (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on November 2, 2022) |
| |
|
|
| 4.7 |
|
Material change report dated February 17, 2023 with respect to the Company filing an independent Preliminary Economic Assessment (“PEA”) technical report for its Silver Sand project located in Potosi, Bolivia, with an effective date of November 30, 2022 (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on July 27, 2023) |
| |
|
|
| 4.8 |
|
Material change report dated December 6, 2022 with respect to the appointment of Peter Megaw and Dickson Hall to the board of directors of the Company (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on December 7, 2022) |
| |
|
|
| 4.9 |
|
Material change report dated December 2, 2022 with respect to the Company filing an independent NI 43-101 technical report for its Carangas project located in Oruro, Bolivia, with an effective date of June 16, 2022 (incorporated by reference from the Registrant’s Report on Form 6-K filed with the Commission on Decmeber 2, 2022) |
| |
|
|
| 5.1 |
|
Consent of Deloitte LLP |
| |
|
|
| 5.2 |
|
Consent of Wayne Rogers |
| |
|
|
| 5.3 |
|
Consent of Mo Molavi |
| |
|
|
| 5.4 |
|
Consent of John Morton Shannon |
| |
|
|
| 5.5 |
|
Consent of Dinara Nussipakynova |
| |
|
|
| 5.6 |
|
Consent of Andrew Holloway |
| |
|
|
| 5.7 |
|
Consent of Leon Botham |
| |
|
|
| 5.8 |
|
Consent of Donald Birak |
| |
|
|
| 5.9 |
|
Consent of Alex Zhang |
| |
|
|
| 6.1* |
|
Powers of Attorney (included on the signature page of this Registration Statement) |
| |
|
|
| 7.1 |
|
Form of Indenture |
| |
|
|
| 107* |
|
Filing Fee Table |
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form F-10 and has duly caused this Amendment No.1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vancouver, Province of British Columbia, Canada, on this 17th day of August, 2023.
| |
NEW PACIFIC METALS CORP. |
| |
|
| |
By: |
/s/ Rui Feng |
| |
|
Name: |
Rui Feng |
| |
|
Title: |
Chief Executive Officer |
POWERS OF ATTORNEY
Pursuant to the requirements
of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the dates
indicated:
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Rui Feng |
|
Chief Executive Officer and Director |
|
August 17, 2023 |
| Rui Feng |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Jalen Yuan |
|
Chief Financial Officer |
|
August 17, 2023 |
| Jalen Yuan |
|
(Principal Financial Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| * |
|
Director |
|
August 17, 2023 |
| Terry Salman |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August 17, 2023 |
| Dickson Hall |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August 17, 2023 |
| Maria Tang |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August 17, 2023 |
| Martin Wafforn |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
August 17, 2023 |
| Peter Megaw |
|
|
|
|
| |
|
| |
|
| *By: |
/s/ Rui Feng |
|
|
| Name: |
Rui Feng |
|
|
| Title: |
Attorney in fact |
|
|
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of
the Securities Act of 1933, as amended, the undersigned has signed this Amendment No. 1 to the Registration Statement, in the capacity of the duly authorized
representative of the Registrant in the United States, on August 17, 2023.
| |
PUGLISI & ASSOCIATES |
| |
|
| |
/s/ Donald J. Puglisi |
| |
Name: |
Donald J. Puglisi |
| |
Title: |
Managing Director |
Exhibit 5.1
CONSENT OF Independent Registered Public Accounting Firm
We consent to the incorporation by reference in
this Registration Statement No. 333-273541 on Form F-10 of our report dated August 24, 2022 relating to the financial statements of New Pacific Metals
Corp. appearing in the Annual Report on Form 40-F of New Pacific Metals Corp. for the year ended June 30, 2022.
/s/ Deloitte LLP
Chartered Professional Accountants
Vancouver, Canada
August 17, 2023
Exhibit 5.2
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Silver Sand Deposit Preliminary Economic Assessment” dated February 16, 2023 (effective date November 30, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ Wayne Rogers
Wayne Rogers, P. Eng.
Exhibit 5.3
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Silver Sand Deposit Preliminary Economic Assessment” dated February 16, 2023 (effective date November 30, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ Mo Molavi
Mo Molavi, P. Eng.
Exhibit 5.4
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Silver Sand Deposit Preliminary Economic Assessment” dated February 16, 2023 (effective date November 30, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ John Morton Shannon
John Morton Shannon, P. Eng.
Exhibit 5.5
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Silver Sand Deposit Preliminary Economic Assessment” dated February 16, 2023 (effective date November 30, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ Dinara Nussipakynova
Dinara Nussipakynova, P. Eng.
Exhibit 5.6
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Silver Sand Deposit Preliminary Economic Assessment” dated February 16, 2023 (effective date November 30, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ Andrew Holloway
Andrew Holloway, P. Eng.
Exhibit 5.7
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Silver Sand Deposit Preliminary Economic Assessment” dated February 16, 2023 (effective date November 30, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
|
| /s/ Leon Botham |
| Leon Botham, P.Eng. |
Exhibit 5.8
CONSENT OF EXPERT
The undersigned hereby consents to the use of my name and references to, excerpts from, and summaries of the Technical Report titled “Carangas Project Technical Report” dated August 20, 2022 (effective date June 16, 2022) prepared for New Pacific Metals Corp. (the “Company”) in the Company’s Form F-10 Registration Statement being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ Donald Birak
Donald Birak
Exhibit 5.9
CONSENT OF EXPERT
I hereby consent to the use of my name and information included or incorporated by reference in the registration statement on Form F-10 of New Pacific Metals Corp. being filed with the United States Securities and Exchange Commission, and any amendments thereto, and the documents incorporated by reference therein.
Dated: August 17, 2023
/s/ Alex Zhang
Alex Zhang
Exhibit 7.1
NEW PACIFIC METALS CORP.
as Issuer
and
[ ]
as U.S. Trustee
and
[ ]
as Canadian Trustee
Indenture
Dated as of [ ]
TABLE OF CONTENTS
| ARTICLE One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| Section 1.01 |
Definitions |
1 |
| Section 1.02 |
Rules of Construction |
9 |
| Section 1.03 |
Compliance Certificates and Opinions |
10 |
| Section 1.04 |
Form of Documents Delivered to Trustees |
10 |
| Section 1.05 |
Acts of Holders |
11 |
| Section 1.06 |
Notices, Etc. to Trustees and Company |
12 |
| Section 1.07 |
Notice to Holders; Waiver |
12 |
| Section 1.08 |
Effect of Headings and Table of Contents |
13 |
| Section 1.09 |
Successors and Assigns |
13 |
| Section 1.10 |
Severability Clause |
13 |
| Section 1.11 |
Benefits of Indenture |
13 |
| Section 1.12 |
Governing Law |
13 |
| Section 1.13 |
Legal Holidays |
14 |
| Section 1.14 |
Agent for Service; Submission to Jurisdiction; Waiver of Immunities |
14 |
| Section 1.15 |
Conversion of Judgment Currency |
14 |
| Section 1.16 |
Currency Equivalent |
15 |
| Section 1.17 |
Conflict with Trust Indenture Legislation |
16 |
| Section 1.18 |
Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability |
16 |
| Section 1.19 |
Waiver of Jury Trial |
16 |
| Section 1.20 |
Counterparts |
16 |
| Section 1.21 |
Force Majeure |
16 |
| |
|
|
| ARTICLE Two SECURITIES FORMS |
17 |
| Section 2.01 |
Forms Generally |
17 |
| Section 2.02 |
Form of Trustee’s Certificate of Authentication |
17 |
| Section 2.03 |
Securities Issuable in Global Form |
18 |
| |
|
|
| ARTICLE Three THE SECURITIES |
18 |
| Section 3.01 |
Issuable in Series |
18 |
| Section 3.02 |
Denominations |
22 |
| Section 3.03 |
Execution, Authentication, Delivery and Dating |
22 |
| Section 3.04 |
Temporary Securities |
23 |
| Section 3.05 |
Registration, Registration of Transfer and Exchange |
25 |
| Section 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities |
27 |
| Section 3.07 |
Payment of Principal, Premium and Interest; Interest Rights Preserved; Optional Interest Reset |
28 |
| Section 3.08 |
Optional Extension of Stated Maturity |
30 |
| Section 3.09 |
Persons Deemed Owners |
31 |
| Section 3.10 |
Cancellation |
31 |
| Section 3.11 |
Computation of Interest |
32 |
| Section 3.12 |
Currency and Manner of Payments in Respect of Securities |
32 |
| Section 3.13 |
Appointment and Resignation of Successor Exchange Rate Agent |
35 |
| |
|
|
| ARTICLE Four SATISFACTION AND DISCHARGE |
35 |
| Section 4.01 |
Satisfaction and Discharge of Indenture |
35 |
| Section 4.02 |
Application of Trust Money |
36 |
| |
|
|
| ARTICLE Five REMEDIES |
36 |
| Section 5.01 |
Events of Default |
36 |
| Section 5.02 |
Acceleration of Maturity; Rescission and Annulment |
37 |
| Section 5.03 |
Collection of Debt and Suits for Enforcement by Trustees |
38 |
| Section 5.04 |
Trustees May File Proofs of Claim |
39 |
| Section 5.05 |
Trustees May Enforce Claims Without Possession of Securities |
40 |
| Section 5.06 |
Application of Money Collected |
40 |
| Section 5.07 |
Limitation on Suits |
40 |
| Section 5.08 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
41 |
| Section 5.09 |
Restoration of Rights and Remedies |
41 |
| Section 5.10 |
Rights and Remedies Cumulative |
41 |
| Section 5.11 |
Delay or Omission Not Waiver |
42 |
| Section 5.12 |
Control by Holders |
42 |
| Section 5.13 |
Waiver of Past Defaults |
42 |
| Section 5.14 |
Waiver of Stay or Extension Laws |
43 |
| Section 5.15 |
Undertaking for Costs |
43 |
| |
|
|
| ARTICLE Six THE TRUSTEES |
43 |
| Section 6.01 |
Notice of Defaults |
43 |
| Section 6.02 |
Certain Duties and Responsibilities of Trustees |
43 |
| Section 6.03 |
Certain Rights of Trustees |
45 |
| Section 6.04 |
Trustees Not Responsible for Recitals or Issuance of Securities |
46 |
| Section 6.05 |
May Hold Securities |
46 |
| Section 6.06 |
Money Held in Trust |
46 |
| Section 6.07 |
Compensation and Reimbursement |
46 |
| Section 6.08 |
Corporate Trustees Required; Eligibility |
47 |
| Section 6.09 |
Resignation and Removal; Appointment of Successor |
48 |
| Section 6.10 |
Acceptance of Appointment by Successor |
49 |
| Section 6.11 |
Merger, Conversion, Consolidation or Succession to Business |
50 |
| Section 6.12 |
Appointment of Authenticating Agent |
51 |
| Section 6.13 |
Joint Trustees |
52 |
| Section 6.14 |
Other Rights of Trustees |
53 |
| |
|
|
| ARTICLE Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
54 |
| Section 7.01 |
Company to Furnish Trustees Names and Addresses of Holders |
54 |
| Section 7.02 |
Preservation of List of Names and Addresses of Holders |
54 |
| Section 7.03 |
Disclosure of Names and Addresses of Holders |
54 |
| Section 7.04 |
Reports by Trustees |
55 |
| Section 7.05 |
Reports by the Company |
55 |
| |
|
|
| ARTICLE Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
56 |
| Section 8.01 |
Company May Consolidate, etc., only on Certain Terms |
56 |
| Section 8.02 |
Successor Person Substituted |
56 |
| |
|
|
| ARTICLE Nine SUPPLEMENTAL INDENTURES |
57 |
| Section 9.01 |
Supplemental Indentures Without Consent of Holders |
57 |
| Section 9.02 |
Supplemental Indentures with Consent of Holders |
58 |
| Section 9.03 |
Execution of Supplemental Indentures |
59 |
| Section 9.04 |
Effect of Supplemental Indentures |
59 |
| Section 9.05 |
Conformity with Trust Indenture Legislation |
59 |
| Section 9.06 |
Reference in Securities to Supplemental Indentures |
59 |
| Section 9.07 |
Notice of Supplemental Indentures |
60 |
| |
|
|
| ARTICLE Ten COVENANTS |
60 |
| Section 10.01 |
Payment of Principal, Premium and Interest |
60 |
| Section 10.02 |
Maintenance of Office or Agency |
60 |
| Section 10.03 |
Money for Securities Payments to Be Held in Trust |
61 |
| Section 10.04 |
Statement as to Compliance |
62 |
| Section 10.05 |
Payment of Taxes and Other Claims |
62 |
| Section 10.06 |
Corporate Existence |
62 |
| Section 10.07 |
Waiver of Certain Covenants |
62 |
| |
|
|
| ARTICLE Eleven REDEMPTION OF SECURITIES |
63 |
| Section 11.01 |
Applicability of Article |
63 |
| Section 11.02 |
Election to Redeem; Notice to Trustees |
63 |
| Section 11.03 |
Selection by Trustees of Securities to Be Redeemed |
63 |
| Section 11.04 |
Notice of Redemption |
63 |
| Section 11.05 |
Deposit of Redemption Price |
64 |
| Section 11.06 |
Securities Payable on Redemption Date |
64 |
| Section 11.07 |
Securities Redeemed in Part |
65 |
| |
|
|
| ARTICLE Twelve SINKING FUNDS |
65 |
| Section 12.01 |
Applicability of Article |
65 |
| Section 12.02 |
Satisfaction of Sinking Fund Payments with Securities |
65 |
| Section 12.03 |
Redemption of Securities for Sinking Fund |
66 |
| |
|
|
| ARTICLE Thirteen REPAYMENT AT OPTION OF HOLDERS |
67 |
| Section 13.01 |
Applicability of Article |
67 |
| Section 13.02 |
Repayment of Securities |
67 |
| Section 13.03 |
Exercise of Option |
67 |
| Section 13.04 |
When Securities Presented for Repayment Become Due and Payable |
67 |
| Section 13.05 |
Securities Repaid in Part |
68 |
| ARTICLE Fourteen DEFEASANCE AND COVENANT DEFEASANCE |
68 |
| Section 14.01 |
Company’s Option to Effect Defeasance or Covenant Defeasance |
68 |
| Section 14.02 |
Defeasance and Discharge |
68 |
| Section 14.03 |
Covenant Defeasance |
69 |
| Section 14.04 |
Conditions to Defeasance or Covenant Defeasance |
69 |
| Section 14.05 |
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
71 |
| Section 14.06 |
Reinstatement |
71 |
CROSS-REFERENCE TABLE
|
TIA
Section |
Indenture
Section |
| 310 |
(a) |
|
6.08(1) |
| |
(b) |
|
6.09 |
| |
(c) |
|
Not Applicable |
| 311 |
(a) |
|
6.05 |
| |
(b) |
|
6.05 |
| |
(c) |
|
Not Applicable |
| 312 |
(a) |
|
7.05 |
| |
(b) |
|
7.03 |
| |
(c) |
|
7.03 |
| 313 |
(a) |
|
7.04 |
| |
(b) |
|
7.04 |
| |
(c) |
|
7.04 |
| |
(d) |
|
7.05 |
| 314 |
(a) |
|
7.05 |
| |
(a)(4) |
|
10.04 |
| |
(b) |
|
Not Applicable |
| |
(c)(1) |
|
1.01 |
| |
(c)(2) |
|
1.01 |
| |
(d) |
|
Not Applicable |
| |
(e) |
|
1.01 |
| |
(f) |
|
Not Applicable |
| 315 |
(a) |
|
6.02 |
| |
(b) |
|
6.01 |
| |
(c) |
|
6.02 |
| |
(d) |
|
6.02 |
| |
(e) |
|
5.15 |
| 316 |
(a)(last sentence) |
|
1.02 (“Outstanding”) |
| |
(a)(1)(A) |
|
5.12 |
| |
(a)(1)(B) |
|
5.02, 5.13 |
| |
(a)(2) |
|
Not Applicable |
| |
(b) |
|
5.08 |
| |
(c) |
|
1.04(e) |
| 317 |
(a)(1) |
|
5.03 |
| |
(a)(2) |
|
5.04 |
| |
(b) |
|
10.03 |
| 318 |
(a) |
|
1.16 |
Note: This Cross-Reference Table shall not, for
any purpose, be deemed to be part of this Indenture.
INDENTURE, dated as of ____________________,
among NEW PACIFIC METALS CORP., a corporation duly continued and existing under the laws of the Province of British Columbia, Canada (herein
called the “Company”), having its principal office at Suite 1750-1066 West Hastings Street, Vancouver, British Columbia, Canada
V6E 3X1, and ______________________, a ______________________, organized under the laws of ______________________, as U.S. trustee (herein
called the “U.S. Trustee”), and ______________________, a ______________________, organized under the laws of ______________________,
as Canadian trustee (the “Canadian Trustee” and, together with the U.S. Trustee, the “Trustees”).
RECITALS
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes, bonds or other evidences
of indebtedness (herein called the “Securities”), 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 Trust Indenture Legislation that are required to be part of this Indenture and shall, to the extent applicable, be governed
by such provisions.
All things necessary to make
this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
“Act,” when
used with respect to any Holder, has the meaning specified in Section 1.04.
“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 authorized by the applicable Trustee pursuant to Section 6.12 to act on behalf of such Trustee to authenticate Securities.
“Base Currency”
has the meaning specified in Section 1.14.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Corporate Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustees.
“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 3.01, any day other than Saturday, Sunday or any other
day on which commercial banking institutions in that Place of Payment or other location are permitted or required by any applicable law,
regulation or executive order to close.
“calculation period”
has the meaning specified in Section 3.11.
“Canadian Trustee”
means the Person named as the “Canadian Trustee” in the first paragraph of this Indenture until a successor Canadian Trustee
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Canadian Trustee” shall mean
or include each Person who is then a Canadian Trustee hereunder; provided, however, that if at any time there is more than one
such Person, “Canadian Trustee” as used with respect to the Securities of any series shall mean only the Canadian Trustee
with respect to Securities of that series.
“Commission”
means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“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 an Officer and delivered to
the Trustees.
“Component Currency”
has the meaning specified in Section 3.12(h).
“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 U.S. Trustee or the Canadian Trustee, as applicable, at which at any particular time
its corporate trust business may be administered, such an office on the date of execution of this Indenture of the U.S. Trustee is located
at _________________________, Attention: _______________________, and of the Canadian Trustee is located at ______________________, Attention:
____________________________, except that with respect to presentation of Securities for payment or for registration of transfer or exchange,
such term shall mean the office or agency of the U.S. Trustee or the Canadian Trustee, as applicable, designated in writing to the Company
at which, at any particular time, its corporate agency business shall be conducted.
“covenant defeasance”
has the meaning specified in Section 14.03.
“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.
“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 3.07.
“defeasance”
has the meaning specified in Section 14.02.
“Depositary”
means, with respect to the Securities of any series issuable or issued in global form, the Person designated as Depositary by the Company
pursuant to Section 3.05 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and, if at any time there
is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Securities of that series.
“Dollar” or
“$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
“Dollar Equivalent of
the Currency Unit” has the meaning specified in Section 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).
“Event of Default”
has the meaning specified in Section 5.01.
“Exchange Act”
means the United States Securities Exchange Act of 1934, as amended.
“Exchange Date”
has the meaning specified in Section 3.04.
“Exchange Rate Agent”
means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 3.01,
a New York clearing house bank, designated pursuant to Section 3.01 or Section 3.13.
“Exchange Rate Officer’s
Certificate” means a tested telex or a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal, 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 3.02 in the relevant Currency), payable with
respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of
a certificate) by the Chief Executive Officer, President or Chief Financial Officer of the Company.
“Extension Notice”
has the meaning specified in Section 3.08.
“Extension Period”
has the meaning specified in Section 3.08.
“Final Maturity”
has the meaning specified in Section 3.08.
“First Currency”
has the meaning specified in Section 1.15.
“Foreign Currency”
means any Currency other than Currency of the United States.
“GAAP” means
generally accepted accounting principles in Canada in effect from time to time, unless the Person’s most recent audited or quarterly
financial statements are not prepared in accordance with generally accepted accounting principles in Canada, in which case “GAAP”
shall mean generally accepted accounting principles in the United States in effect from time to time.
“Government Obligations”
means, unless otherwise specified with respect to any series of Securities pursuant to Section 3.01, securities which are (i) direct
obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) 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 the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.
“Holder” means
the Person in whose name a Security is registered in the Security Register.
“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 3.01; 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 the particular series of Securities for
which such Person is Trustee established as contemplated by Section 3.01, 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, pledge, hypothecation, charge, assignment, deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any agreement to give or grant a Lien or any lease, conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing).
“mandatory sinking fund
payment” has the meaning specified in Section 12.01.
“Market Exchange Rate”
means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, (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 3.01 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for
any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market
at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from major banks located in New York City, Vancouver, 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 3.01, 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, Vancouver, London or another principal market for the Currency in question, or such other quotations
as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market
for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency
shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make
payments in respect of such securities.
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
“Notice of Default”
has the meaning specified in Section 6.01.
“Officer”
means the Chair of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Operating
Officer, any Executive Vice President, any Vice President, the Treasurer or the Corporate Secretary of the Company or, in the event that
the Company is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by
the general partner, managers, members or a similar body to act on behalf of the Company.
“Officer’s Certificate”
means a certificate, which shall comply with this Indenture, signed by an Officer and delivered to the Trustees.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company, including an employee of the Company, who shall be acceptable
to the Trustees, which opinion may contain customary exceptions and qualifications as to the matters set forth therein.
“Optional Reset Date”
has the meaning specified in Section 3.07.
“optional sinking fund
payment” has the meaning specified in Section 12.01.
“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 5.02.
“Original Stated Maturity”
has the meaning specified in Section 3.08.
“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 either Trustee or delivered to either 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 either 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; 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 Trustees has been made; |
| (iii) | Securities, except to the extent provided in Section 14.02 and Section
14.03, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and |
| (iv) | Securities which have been paid pursuant to Section 3.06 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 Trustees proof satisfactory to them 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, 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 5.02,
(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 Trustees, 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 3.01,
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 Trustees 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 Trustees know 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 establishes to the satisfaction of the Trustees 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, premium (if any) or
interest (if any) on any Securities on behalf of the Company. Such Person must be capable of making payment in the Currency of the issued
Security.
“Person” means
any individual, corporation, body corporate, partnership, limited partnership, limited liability partnership, joint venture, limited liability
company, unlimited liability company, association, joint-stock company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
“Place of Payment”
means, when used with respect to the Securities of or within any series, each place where the principal of, premium (if any) and interest
(if any) on such Securities are payable as specified as contemplated by Sections 3.01 and 10.02.
“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 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
“Privacy Laws”
has the meaning specified in Section 6.14.
“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, in whole or in part, means the price at which it is to be redeemed pursuant to
this Indenture, plus accrued and unpaid interest thereon to the Redemption Date.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose
as contemplated by Section 3.01.
“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.
“Reset Notice”
has the meaning specified in Section 3.07.
“Responsible Officer,”
when used with respect to a Trustee, means any vice president, secretary, any assistant secretary, treasurer, any assistant treasurer,
any senior trust officer, any trust officer, the controller within the corporate trust administration division of a Trustee or any other
officer of a Trustee customarily performing functions similar to those performed by any of the above-designated officers, 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 3.05.
“Special Record Date”
for the payment of any Defaulted Interest on the Securities of or within any series means a date fixed by the Trustees pursuant to Section 3.07.
“Specified Amount”
has the meaning specified in Section 3.12(h).
“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
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 3.08 (if applicable).
“Subsequent Interest
Period” has the meaning specified in Section 3.07.
“Trust Indenture Act”
or “TIA” means the United States Trust Indenture Act of 1939, as amended, as in force at the date as of which this
Indenture was executed, except as provided in Section 9.05.
“Trust Indenture Legislation”
means, at any time, the provisions of (i) any applicable statute of Canada or any province or territory thereof and the regulations thereunder
as amended or re-enacted from time to time, but only to the extent applicable, or (iii) the Trust Indenture Act and regulations thereunder,
but only to the extent applicable, in each case relating to trust indentures and to the rights, duties and obligations of trustees under
trust indentures and of corporations issuing debt obligations under trust indentures, to the extent that such provisions are at such time
in force and applicable to this Indenture or the Company or the Trustees.
“Trustee”
or “Trustees” means the U.S. Trustee and the Canadian Trustee. If a Canadian Trustee is not appointed under this Indenture,
or resigns or is removed and, pursuant to Section 6.09, the Company is not required to appoint a successor Trustee to the Canadian
Trustee, “Trustee,” “Trustees” and any reference to “either Trustee,” “both of the Trustees”
or such similar references shall mean the Person named as the U.S. Trustee or any successor thereto appointed pursuant to the applicable
provisions of this Indenture. Except to the extent otherwise indicated, “Trustees” shall refer to the Canadian Trustee (if
appointed and still serving) and the U.S. Trustee, both jointly and individually.
“U.S. Federal Bankruptcy
Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
“U.S. Trustee”
means the Person named as the “U.S. Trustee” in the first paragraph of this Indenture until a successor U.S. Trustee shall
have become such pursuant to the applicable provisions of this Indenture, and thereafter “U.S. Trustee” shall mean or include
each Person who is then a U.S. Trustee hereunder; provided, however, that if at any time there is more than one such Person, “U.S.
Trustee” as used with respect to the Securities of any series shall mean only the U.S. Trustee with respect to Securities of that
series.
“United States”
means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, 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 3.01, an individual who is a citizen or resident
of the United States, a corporation, partnership (including any entity treated as a corporation or as a partnership for United States
federal income tax purposes) or other entity created or organized in or under the laws of the United States, any state thereof or the
District of Columbia, an estate the income of which is subject to 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 United
States Treasury Regulations to be treated as a United States person.
“Valuation Date”
has the meaning specified in Section 3.12(c).
“Writing”
has the meaning specified in Section 6.13.
“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 1.02 Rules
of Construction.
For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
| (1) | the terms defined in this Indenture have the meanings assigned to them herein and include the plural as well
as the singular; |
| (2) | all 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 319, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust Indenture
Act; |
| (3) | the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; |
| (4) | “or” is not exclusive; |
| (5) | words implying any gender shall apply to all genders; |
| (6) | the words Subsection, Section and Article refer to the Subsections, Sections and Articles, respectively,
of this Indenture unless otherwise noted; and |
| (7) | “include,” “includes” or “including” means include, includes or including,
in each case, without limitation. |
Section 1.03 Compliance
Certificates and Opinions.
Upon any application or request
by the Company to the Trustees to take any action under any provision of this Indenture, the Company shall furnish to the Trustees an
Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance
with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion
with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 10.04) 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 1.04 Form
of Documents Delivered to Trustees.
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 may certify or give an opinion with respect
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 an Opinion of Counsel, a certificate 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 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 Trustees 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 1.05 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. Except as
herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered
to the Trustees 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 Trustees and the Company, if made in the manner provided in this Section 1.05. The Trustees may make reasonable rules for
action by or at a meeting of Holders.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other
manner which the Trustees deem sufficient.
(c) The
ownership of the Securities, including the principal amount and serial numbers, and the date of holding the same, shall be proved by the
Security Register.
(d) If
the Company shall solicit from the Holders of 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 Trust Indenture Legislation, including 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.
(e) 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 Trustees or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
Section 1.06 Notices,
Etc. to Trustees 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 U.S. Trustee, by the Canadian Trustee, any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the U.S. Trustee at its Corporate Trust Office, Attention: ________________,
or |
| (2) | the Canadian Trustee, by the U.S. Trustee, any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Canadian Trustee at its Corporate Trust Office, Attention: ________________,
or |
| (3) | the Company by either Trustee or 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 at Suite
1750-1066 West Hastings Street, Vancouver, British Columbia, Canada V6E 3X1, Attention: Corporate Secretary or such other address and/or
officer as the Company may designate on written notice to the Trustees. |
Section 1.07 Notice
to Holders; Waiver.
Where this Indenture provides
for notice of any event to Holders of Securities by the Company or the Trustees, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register. In any case where notice to Holders of 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 Securities. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension
of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders
of 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 satisfactory to the Trustees shall be deemed to be sufficient giving of such notice for every purpose hereunder.
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 Trustees, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.08 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 1.09 Successors
and Assigns.
All covenants and agreements
in this Indenture by the Company and the Trustees shall bind their successors and assigns, whether so expressed or not.
Section 1.10 Severability
Clause.
In case any provision in this
Indenture or in any Security 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 1.11 Benefits
of Indenture.
Nothing in this Indenture or
in the Securities, 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, any benefit or any legal or equitable right, remedy
or claim under this Indenture. Subject to Section 1.16, at all times in relation to this Indenture and any action to be taken hereunder,
the Company and the Trustees each shall observe and comply with Trust Indenture Legislation and the Company, the Trustees and each Holder
of a Security shall be entitled to the benefits of Trust Indenture Legislation.
Section 1.12 Governing
Law.
This Indenture and the Securities
shall be governed by and construed in accordance with the law of the State of New York, but without giving effect to applicable principles
of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. Notwithstanding the
preceding sentence, the exercise, performance or discharge by the Canadian Trustee of any of its rights, powers, duties or responsibilities
hereunder shall be construed in accordance with the laws of the Province of [British Columbia] and the federal laws of Canada applicable
thereto. This Indenture is subject to the provisions of Trust Indenture Legislation that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions. Each Trustee and the Company agrees to comply with all provisions of
Trust Indenture Legislation applicable to or binding upon it in connection with this Indenture and any action to be taken hereunder.
Section 1.13 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 or other location contemplated hereunder, then (notwithstanding any other provision of this Indenture or of any Security
other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section
1.13), payment of principal, premium (if any) or interest (if any), need not be made at such Place of Payment or other location contemplated
hereunder on such date, but may be made on the next succeeding Business Day at such Place of Payment or other location contemplated hereunder
with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
Section 1.14 Agent
for Service; Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery
of this Indenture, the Company (i) 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 located in The Borough of Manhattan, The City of New York,
or brought by the Trustees (whether in their individual capacity or in their capacity as Trustees hereunder), (ii) irrevocably submits
to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon
_____________________ and written notice of said service to the Company (mailed or delivered to the Company at Suite 1750-1066 West Hastings
Street, Vancouver, British Columbia, Canada V6E 3X1, Attention: Corporate Secretary or such other address and/or officer as the Company
may designate on written notice to the Trustees), shall be deemed in every respect effective service of process upon the Company in any
such suit 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 this Indenture shall be in full force and effect.
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, the Company
hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities, to the extent permitted
by law.
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. The Company 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.
Section 1.15 Conversion
of Judgment Currency.
(a) 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:
(i) If
for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into
a Currency (the “Judgment Currency”) an amount due or contingently due in any other Currency under the Securities of
any series and this Indenture (the “Base Currency”), then the conversion shall be made at the rate of exchange prevailing
on the Business Day before the day on which the final judgment is given or the order of enforcement is made, as the case may be (unless
a court shall otherwise determine).
(ii) If
there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment referred to in (i) above
is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt
of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so
that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the
amount in the Base 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 outstanding, the Company shall indemnify and hold the Holders and the Trustees
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 Base Currency due or contingently due under the Securities and this Indenture (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 1.15 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 the Trustees 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 Trustees, as the
case may be, and no proof or evidence of any actual loss shall be required by the Company or its liquidator. In the case of Subsection (b)
above, the amount of such deficiency shall not be deemed to be increased or reduced by any variation in rates of exchange occurring between
the said final date and the date of any liquidating distribution.
The term “rate(s) of
exchange” shall mean the rate of exchange quoted by a Canadian chartered bank as may be designated in writing by the Company
to the Trustees from time to time, at its central foreign exchange desk in its main office in Vancouver at 12:00 noon (Vancouver time)
on the relevant date for purchases of the Base Currency with the Judgment Currency and includes any premiums and costs of exchange payable.
The Trustees shall have no duty or liability with respect to monitoring or enforcing this Section 1.15.
Section 1.16 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 noon rate as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate
as may be agreed upon by each of the parties to this Indenture) on the date of determination.
Section 1.17 Conflict
with Trust Indenture Legislation.
If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with any mandatory requirement of Trust Indenture Legislation, such mandatory
requirement shall control. If and to the extent that any provision hereof modifies or excludes any provision of Trust Indenture Legislation
that may be so modified or excluded, the latter provision shall be deemed to apply hereof as so modified or to be excluded, as the case
may be.
Section 1.18 Incorporators,
Shareholders, Officers and Directors of the Company Exempt from Individual Liability.
No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, as such, or against any past, present or future shareholder, officer or director, as such, of the Company
or of any successor, either directly or through the Company or any successor, under any rule of law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
Section 1.19 Waiver
of Jury Trial.
Each of the Company and the Trustees
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.
Section 1.20 Counterparts.
This Indenture may be executed
in any number of counterparts (either by facsimile or by original manual signature), each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the same Indenture.
Section 1.21 Force
Majeure.
Except for the payment obligations
of the Company contained herein, neither the Company nor the Trustees shall be liable to each other, or held in breach of this Indenture,
if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots,
terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not
limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Indenture shall
be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section 1.21.
ARTICLE Two
SECURITIES FORMS
Section 2.01 Forms
Generally.
The Securities of each series
shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the Officer executing
such Securities , as evidenced by the execution of such Securities by such Officer. If the forms of Securities 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 Corporate Secretary
or an Assistant Secretary of the Company and delivered to the Trustees at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such Securities. 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.
Either Trustee’s certificate
of authentication shall be in substantially the form set forth in this Article Two.
Section 2.02 Form
of Trustee’s Certificate of Authentication.
Subject to Section 6.12,
either Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
(Certificate of Authentication may be executed
by either Trustee)
Dated: ____________
_______________________, as U.S.
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| |
_____________________________________, |
| |
as U.S. Trustee |
| |
|
|
| |
|
|
| |
By: |
___________________________________ |
| |
|
Authorized Officer |
OR
Dated: ____________
____________________, as Canadian Trustee, certifies
that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| |
____________________________________, |
| |
as Canadian Trustee |
| |
|
|
| |
By: |
___________________________________ |
| |
|
Authorized Officer |
Section 2.03 Securities
Issuable in Global Form.
If Securities of or within a
series are issuable in global form, as specified and contemplated by Section 3.01, then any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by
the Trustees in such manner and upon instructions given by the Holder or its nominee as shall be specified therein or in the Company Order
to be delivered to the Trustees pursuant to Section 3.03 or 3.04. Subject to the provisions of Sections 3.03 and 3.04 (if applicable),
the Trustees shall deliver and redeliver any Security in global form in the manner and upon instructions given by the Holder or its nominee
as shall be specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or Section 3.04
has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 1.03 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions
of Section 3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of, premium (if any) and interest
(if any) on any Security in permanent global form shall be made to the Holder or its nominee specified therein.
Notwithstanding Section 3.09
and except as provided in the preceding paragraph, the Company, the Trustees and any agent of the Company and the Trustees shall treat
as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security, the Holder of such permanent
global Security.
ARTICLE Three
THE SECURITIES
Section 3.01 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 and may be denominated and payable in Dollars or any Foreign Currency. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board Resolutions and set forth in, or determined in the manner provided
in, an Officer’s Certificate, 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:
| (1) | the title of the Securities of the series (which shall distinguish the Securities of such series from the
Securities of all other series); |
| (2) | the aggregate principal amount of the Securities of the series and any limit upon the aggregate principal
amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer (including any restriction or condition on the transferability of the Securities of such series)
of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.05)
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 3.01 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 extent and manner, if any, to 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 whether the payment of principal,
premium (if any) and interest (if any) will be guaranteed by any other Person; |
| (4) | the percentage or percentages of principal amount at which the Securities of the series will be issued; |
| (5) | the date or dates, or the method by which such date or dates will be determined or extended, on which the
Securities of the series may be issued and the date or dates, or the method by which such date or dates will be determined or extended,
on which the principal of and premium (if any) on the Securities of the series is payable; |
| (6) | the rate or rates at which the Securities of the series shall bear interest, whether fixed or variable (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 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; |
| (7) | the place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York,
where the principal of, premium (if any) and interest (if any) on Securities of the series shall be payable, where any 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 1.06, 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; |
| (8) | the period or periods within which, the date or dates on which, the price or prices at which, the Currency
in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option; |
| (9) | the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to
any sinking fund, amortization or analogous provisions or at the option |
| | of a Holder thereof, and the period or periods within which, the
price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation; |
| (10) | if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations
in which any Securities of the series shall be issuable; |
| (11) | the identity of each Security Registrar and/or Paying Agent; |
| (12) | 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 5.02 or the method by which such
portion shall be determined; |
| (13) | if other than Dollars, the Foreign Currency in which payment of the principal of, 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; |
| (14) | whether the amount of payments of principal of, 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; |
| (15) | whether the principal of, 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; |
| (16) | the designation of the initial Exchange Rate Agent, if any; |
| (17) | the applicability, if any, of Sections 14.02 and/or 14.03 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 Fourteen that shall be applicable to the Securities
of the series; |
| (18) | provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence
of such events as may be specified; |
| (19) | any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions
from, modifications of or additions to Section 10.09) 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; |
| (20) | any restrictions applicable to the offer, sale or delivery of Securities of the series, whether any Securities
of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent
global form 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 3.05, 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 designation of any Depositary therefor; |
| (21) | the date as of which any temporary global Security of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued; |
| (22) | the Person to whom any interest on any 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, 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 3.04; |
| (23) | 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; |
| (24) | if the Securities of the series are to be issued upon the exercise of warrants or subscription receipts,
the time, manner and place for such Securities to be authenticated and delivered; |
| (25) | if the Securities of the series are to be convertible into or exchangeable for any securities or property
of any Person (including the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and
any additions or changes to permit or facilitate such conversion or exchange; |
| (26) | provisions as to modification, amendment or variation of any rights or terms attaching to the Securities; |
| (27) | whether the Securities will be secured or unsecured and the nature and priority of any security; and |
| (28) | 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 Trust Indenture Legislation or the provisions of this Indenture). |
All Securities of any one series
shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 3.03) and set forth in such Officer’s 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 Trustees at
or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by Section 3.01. With respect to Securities of any
series denominated in Dollars, in the absence of any such provisions, the Securities of such series, other than Securities issued in global
form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution,
Authentication, Delivery and Dating.
The Securities shall be executed
on behalf of the Company by an Officer. The signature of an Officer on the Securities may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company to
the applicable Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the
applicable Trustee in accordance with such Company Order shall authenticate and deliver such Securities. 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 Trustees 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 Trustees shall be entitled to receive,
and (subject to Trust Indenture Legislation, including TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that
the form or forms of such Securities have been established in conformity with the provisions of this Indenture;
(b) that
the terms of such Securities have been established in conformity with the provisions of this Indenture;
(c) that
such Securities, when completed by appropriate insertions and executed and delivered by the Company to the applicable Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the applicable Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with their terms;
(d) the
execution and delivery by the Company of such Securities and any supplemental indenture will not contravene the articles of incorporation
or continuance, or such other constating documents then in effect, if any, or the by-laws of the Company, or violate applicable laws;
and
(e) that
the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance.
Notwithstanding the provisions
of Section 3.01 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 Officer’s Certificate otherwise required pursuant to Section 3.01 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, if
such documents are delivered prior to or at the time of issuance of the first Security of such series and with respect to all Securities
of such series.
The Trustees shall not be required
to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustees’
own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustees.
Each Security shall be dated
the date of its authentication.
No Security shall entitle a 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 applicable Trustee by manual signature of an authorized officer thereof,
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 Trustees
for cancellation as provided in Section 3.10 together with a written statement (which need not comply with Section 1.03 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 a Holder
to the benefits of this Indenture.
Section 3.04 Temporary
Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the applicable 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, and with such appropriate insertions,
omissions, substitutions and other variations as the Officer 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, the
Company shall execute and the applicable 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. 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
office of the Depositary 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 Trustees definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security and of like tenor and evidencing the same indebtedness, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the Depositary to the Trustees, 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 applicable
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 registered form or permanent global registered form, or any combination thereof, as specified as contemplated
by Section 3.01, 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 Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by the Depositary 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, each in the
form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 3.01).
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 the Depositary to request such exchange on his behalf and delivers to the Depositary a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 3.01), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of the Depositary,
the Trustees, 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 the Depositary.
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 3.01, 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 the Depositary on such Interest
Payment Date upon delivery by the Depositary to the Trustees of a certificate or certificates in the form set forth in Exhibit A-2
to this
Indenture (or in such other form as may be established pursuant to Section 3.01), 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 the Depositary 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 A-1 to this Indenture (or
in such other form as may be established pursuant to Section 3.01). 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
3.04 and of the third paragraph of Section 3.03 and the interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like
tenor and evidencing the same indebtedness on the Exchange Date or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal of, premium
(if any) or interest (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 the Depositary and not paid as herein provided shall be returned to the Trustees immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company in accordance with Section 10.03.
Section 3.05 Registration,
Registration of Transfer and Exchange.
So long as required by Trust
Indenture Legislation, the Company shall cause to be kept at the Corporate Trust Offices of the applicable Trustee a register for each
series of Securities (the registers maintained in the Corporate Trust Offices of the Trustees 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 the Holders of Securities
and of transfers of 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 Trustees. The Trustees
are hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Securities
and transfers of 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 Securities shall have been appointed by the Company and shall have accepted such appointment
by the Company. In the event that the Trustees shall not be or shall cease to be the Securities Registrar with respect to a series of
Securities, they shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one
Securities Register for such series of Securities.
Upon surrender for registration
of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and
the applicable Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount and tenor and evidencing the same indebtedness.
For Canadian Securities, the
Security must be duly endorsed for transfer or in a duly endorsed transferable form as applicable and must comply with the current industry
practice in accordance with the Securities Transfer Association of Canada.
At the option of the Holder,
Securities of any series may be exchanged for other 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 Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the applicable Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the applicable 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 3.01, any permanent global Security shall be exchangeable only as provided
in this Section. 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 contemplated by Section 3.01
and provided that any applicable notice provided in the permanent global Security shall have been given to the Company, the Trustees and
the Depositary, 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 applicable 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 or such other depositary
as shall be specified in the Company Order with respect thereto to the applicable 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 applicable 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 as the portion of such permanent global Security to be exchanged. If
a 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, 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 such Security, but will be payable on such Interest Payment Date
or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
Transfers of global Securities
shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. If at any time
the Depositary for Securities of a series notifies the Company that it is unwilling, unable or no longer qualifies to continue as Depositary
for Securities of such series or if at any time the Depositary for such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, the Company shall appoint a successor Depositary for the Securities of such
series. If a successor to the Depositary for Securities of such series 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 3.01
shall no longer be effective with respect to the Securities for such series and the Company will execute, and the applicable Trustee,
upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive 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 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 applicable Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive 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.
Upon the exchange of a global
Security for Securities in definitive form, such global Security shall be cancelled by the applicable Trustee. Securities issued in exchange
for a global Security pursuant to this Section 3.05 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 applicable
Trustee in writing. The applicable 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 Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar or applicable securities transfer
industry practices) 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.
Any registration of transfer
or exchange of Securities may be subject to service charges by the Securities Registrar and 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 3.04, 9.06, 11.07 or 13.05 not involving any transfer.
The Company shall not be required
(i) to issue, register the transfer of or exchange Securities of any series in definitive form 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 11.03 or 12.03
and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer
of or exchange any Security in definitive form so selected for redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to issue, register the transfer of or exchange any Security in definitive form 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 3.06 Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the applicable Trustee, the Company shall execute and the applicable Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and bearing a number
not contemporaneously outstanding, or, in case any such mutilated Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, , pay such Security. If there shall be delivered to the Company and to the Trustees
(i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security (or surety in the
case of the Canadian Trustee) 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 Trustees that such Security has been
acquired by a bona fide purchaser , the Company shall
execute and upon Company Order the applicable Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and evidencing the same indebtedness and bearing a number not
contemporaneously outstanding.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security appertaining to such mutilated, destroyed, lost or stolen
Security, pay such Security.
Upon the issuance of any new
Security under this Section 3.06, 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 Trustees) connected therewith.
Every new Security of any series
issued pursuant to this Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and the Holders of such Security shall be entitled to all the benefits of this Indenture equally and proportionately with the
Holders of any and all other Securities of that series duly issued hereunder.
The provisions of this Section
3.06 as amended or supplemented pursuant to this Indenture with respect to a particular series of Securities or generally are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 3.07 Payment
of Principal, Premium and Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest (if any) on any Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid by the Paying Agent 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 10.02; provided, however,
that each installment of interest (if any) on any Security may at the Company’s option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.09, to the address of such Person
as it appears on the Security Register, (ii) wire transfer to an account located in the United States maintained by the Person entitled
to such payment as specified in the Security Register, or (iii) as otherwise specified pursuant to Section 3.01 for the Securities of
such series. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, principal and premium
(if any) paid in relation to any Security shall be paid to the Holder of such Security only upon presentation and surrender of such Security
at the office or agency of the Company maintained for such purpose pursuant to Section 10.02.
Unless otherwise provided as
contemplated by Section 3.01, every permanent global Security will provide that interest (if any) payable on any Interest Payment
Date will be paid to the Depositary with respect to that portion of such permanent global Security held for its account by the Depositary,
for the purpose of permitting the Depositary 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 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”) must be paid by the
Company as provided for in either clause (1) or (2), at the Company’s election:
| (1) | The Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the 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 Trustees in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the applicable Trustee an amount of money in the Currency in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except,
if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the Trustees 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 Trustees 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 Trustees of the notice of the proposed payment. The Trustees 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 1.07, 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 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 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 Trustees of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustees. |
(b) The
provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01). 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 Trustees of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for
such Security. Not later than 40 days prior to each Optional Reset Date, the Trustees shall transmit, in the manner provided for
in Section 1.07, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether the Company
has elected to reset
the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if
so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity of such Security (each such period a “Subsequent Interest Period”), including the date
or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing,
not later than 20 days prior to the Optional Reset Date, the Company may, at its option, revoke the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate
(or the spread or spread multiplier, 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 Trustees to transmit, in the manner provided for in
Section 1.07, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security
will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal
to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period
for delivery or notification to the Trustees 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 Trustees, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions
of this Section 3.07 and Section 3.05, 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 3.08 Optional
Extension of Stated Maturity.
The provisions of this Section 3.08
may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions
as may be specified pursuant to such Section 3.01). 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 Trustees 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 Trustees shall transmit, in the manner provided for in Section 1.07, to the Holder of such
Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”) indicating
(i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate (if
any) applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustees’
transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the
Extension
Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing,
not later than 20 days before the Original Stated Maturity of such Security, the Company may, at its option, revoke the interest
rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustees to transmit,
in the manner provided for in Section 1.07, notice of such higher interest rate to the Holder of such Security. Such notice shall
be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity
of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at
a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders, except that the period for delivery or notification to the Trustees 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 Trustees revoke such tender for repayment until the close of business
on the tenth day before the Original Stated Maturity.
Section 3.09 Persons
Deemed Owners.
Prior to due presentment of a
Security for registration of transfer, the Company, the Trustees and any agent of the Company or the Trustees may treat the Person in
whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium (if
any) and (subject to Sections 3.05 and 3.07) 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 Trustees or any agent of the Company or the Trustees shall be affected by notice
to the contrary.
The Depositary for Securities
may be treated by the Company, the Trustees, and any agent of the Company or the Trustees as the owner of such global Security for all
purposes whatsoever. None of the Company, the Trustees, 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 Trustees, or any agent of the Company or the Trustees,
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 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 a Trustee, be delivered to either Trustee. All Securities so
delivered to either Trustee shall be promptly cancelled by such Trustee. The Company may at any time deliver to a Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to either Trustee (or
to any other Person for delivery to such 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 such 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 either Trustee for cancellation. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this Section 3.10, except as expressly permitted by this Indenture.
All cancelled Securities held by either Trustee shall be disposed of by such 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 3.01 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 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, payment of the principal of, premium (if any) and interest (if any) on
such Security of such series will be made in the Currency in which such Security is payable. The provisions of this Section 3.12 may be
modified or superseded with respect to any Securities pursuant to Section 3.01.
(b) It
may be provided pursuant to Section 3.01 with respect to Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of, premium (if any) or interest (if any) on such Securities in any
of the Currencies which may be designated for such election by delivering to the Trustees a written election with signature guarantees
and in the applicable form established pursuant to Section 3.01, 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 Trustees
(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 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 Fourteen 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 Security who shall not
have delivered any such election to the Trustees 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 Trustees shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Securities for which Holders have
made such written election.
(c) Unless
otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant
to Section 3.01, then, unless otherwise specified
pursuant to Section 3.01, not later than the fourth Business Day after the
Election Date for each payment date for Securities of any series, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the Currency in which Securities of such series are payable, the respective aggregate amounts of principal of, premium
(if any) and interest (if any) on the Securities to be paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Securities as to which the Holders of 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 3.01
and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.01, on the second Business
Day preceding such payment date the Company will deliver to the Trustees for such series of 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 3.01, the Dollar or Foreign Currency amount receivable by Holders of 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, 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 3.01, the Dollar amount to be paid by the Company to the
Trustees and by the Trustees 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 3.01, if the Holder of a 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 Securities as specified pursuant to clause (15) of Section 3.01 by which the written election
referred to in paragraph (b) above may be made.
All decisions and determinations
of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market
Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustees 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 Trustees 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 Trustees and to the Exchange Rate Agent (and the Trustees will promptly thereafter give notice in the manner provided
for in Section 1.07 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 Trustees and to the Exchange Rate Agent (and the Trustees will promptly thereafter give
notice in the manner provided for in Section 1.07 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 Trustees and the Exchange Rate Agent.
The Trustees shall be fully justified
and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent 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 3.01, if and so long as the Securities of any series (i) are denominated in a Currency
other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision
of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.01 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, 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 3.13 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 Trustees.
(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 3.01, at any time there shall only be one Exchange Rate Agent with respect
to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated
and/or payable in the same Currency).
ARTICLE Four
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Request cease to be of further effect with respect to any series of Securities specified in such Company Request (except as to any surviving
rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and the rights
of Holders of such series of Securities to receive, solely from the trust fund described in subclause (b) of clause (1) of this
Section 4.01, payments in respect of the principal of, premium (if any) and interest (if any) on such Securities when such payments are
due and except as provided in the last paragraph of this Section 4.01) and the Trustees, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when
(a) all
Securities of such series theretofore authenticated and delivered (other than Securities of such series for whose payment money
has theretofore been deposited in trust with either Trustee or any Paying Agent or segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 10.03) have been delivered to either Trustee for cancellation; or
(b) all
Securities of such series not theretofore delivered to either 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 Trustees for the giving of notice of redemption by the Trustees 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 either 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 such Trustee for cancellation, for principal, 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 Trustees an Officer’s 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 Trustees under Section 6.07, the obligations of the Trustees
to any Authenticating Agent under Section 6.12 and, if money shall have been deposited with the Trustees pursuant to subclause (b)
of clause (1) of this Section 4.01, the obligations of the Trustees under Section 4.02, Section 6.07(3) and the last paragraph
of Section 10.03 shall survive.
Section 4.02 Application
of Trust Money.
Subject to the provisions of
the last paragraph of Section 10.03, all money deposited with the Trustees pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustees may determine, to the Persons entitled thereto, of
the principal, premium (if any) and interest (if any) for whose payment such money has been deposited with the Trustees; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE Five
REMEDIES
Section 5.01 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 Officer’s Certificate establishing the terms of such
series pursuant to Section 3.01 of this Indenture:
| (1) | default in the payment of any interest due on any Security of that series, when such interest becomes due
and payable, and continuance of such default for a period of 30 days; or |
| (2) | default in the payment of the principal or premium (if any) in respect of any Security of that series at
its Maturity; or |
| (3) | default in the deposit of any sinking fund, amortization or analogous payment when due by the terms of any
Security of that series and Article Twelve; or |
| (4) | default in the performance, or breach, of any covenant or agreement of the Company in this Indenture which
affects or is applicable to the Securities of that series (other than a covenant or agreement, a default in whose performance or whose
breach is elsewhere in this Section 5.01 specifically dealt with), and continuance of such default or breach for a period of 60 days
after there has been given (and 120 days with respect to a default or breach under Section 7.05), by registered or certified mail, to
the Company by the Trustees or to the Company and the Trustees by the Holders of at least 25% in principal amount of all Outstanding Securities
of that series 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 entry of a decree or order by a court having jurisdiction in the premises adjudging the Company bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under or subject to the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada),
the U.S. Federal Bankruptcy Code or any other federal, provincial, state or foreign bankruptcy, insolvency or analogous laws, or the issuance
of a sequestration order or the (appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or in receipt of any substantial part of the property of the Company, and any such decree, order or appointment continues
unstayed and in effect for a period of 90 consecutive days; or |
| (6) | the institution by the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under or subject to the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada), the U.S. Federal Bankruptcy Code or any other federal, provincial, state or foreign bankruptcy, insolvency or analogous laws
or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its property, or the making by it of a general assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due or the taking
by it of corporate action in furtherance of any of the aforesaid purposes; or |
| (7) | any other Event of Default provided with respect to Securities of that series. |
Section 5.02 Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default described
in clause (1), (2), (3), (4) or (7) of Section 5.01 with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case, either Trustee or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that
series, may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities
or Indexed Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities
of that series and all interest thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustees
if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) shall become immediately due
and payable. If an Event of Default specified in clause (5) or (6) of Section 5.01 occurs and is continuing, then the principal amount
of all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the
Trustees or any Holder.
At any time after such 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 either Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to
the Company and the Trustees, may rescind and annul such declaration and its consequences if:
| (1) | the Company has paid or deposited with either 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 3.01 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), |
| (b) | all unpaid principal of and premium (if any) on any 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 and
premium (if any) at the rate or rates prescribed therefor in such Securities, |
| (c) | to the extent that payment of such interest is legally enforceable, interest on overdue interest at the rate
or rates prescribed therefor in such Securities, and |
| (d) | all sums paid or advanced by the Trustees hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustees, their 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, premium (if any) or interest (if any) 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 5.03 Collection
of Debt and Suits for Enforcement by Trustees.
The Company covenants that if
| (1) | default is made in the payment of any installment of interest on any Security 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) any Security at the Maturity thereof, |
then the Company will, upon demand of the Trustees,
pay to the applicable Trustee for the benefit of the Holders of such Securities , the whole amount then due and payable on such Securities
for principal of, premium (if any) and interest (if any) and interest on any overdue principal, overdue premium (if any) and, to the extent
lawful, overdue interest (if any), 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 Trustees, their agents and counsel.
If the Company fails to pay such
amounts forthwith upon such demand, the Trustees, in their own names as trustees 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, either 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 such 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 5.04 Trustees
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, each
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 either Trustee shall have made any demand on the Company for the payment of overdue principal,
premium (if any) or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
| (i) | to file and prove a claim for the whole amount of principal and premium (if any), or such portion of the
principal amount of any series of Original Issue Discount Securities or Indexed Securities as may be specified in the terms of such series,
and interest (if any) owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of such 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 such
Trustee and, in the event that such Trustee shall consent to the making of such payments directly to the Holders, to pay to such Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and
advances of each Trustee, its agents and counsel, and
any other amounts due to such Trustee under Section 6.07.
Nothing herein contained shall
be deemed to authorize the Trustees 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 Trustees to vote
in respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustees
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture, the Securities may be prosecuted and enforced by the Trustees without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by either 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 such Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 5.06 Application
of Money Collected.
Any money collected by either
Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by the Trustees and, in case
of the distribution of such money on account of principal of, premium (if any) or interest (if any) upon presentation of the Securities,
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 Trustees under Section 6.07;
Second: to the payment of the
amounts then due and unpaid for principal of, premium (if any) and interest (if any), on the Securities 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 for principal, premium (if any) and interest (if any), respectively; and
Third: the balance, if any, to
the Person or Persons entitled thereto.
Section 5.07 Limitation
on Suits.
No Holder of any Security of
any series 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 Trustees 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 that series in the
case of any Event of Default described in clause (1), (2), (3), (4) or (7) of Section 5.01, or, in the case of any Event of
Default described in clause (5) or (6) of Section 5.01, the Holders of not less than 25% in principal amount of all Outstanding
Securities, shall have made written request to the Trustees to institute proceedings in respect of such Event of Default in their own
names as Trustees hereunder; |
| (3) | such Holder or Holders have offered to the Trustees reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request; |
| (4) | the Trustees for 60 days after their receipt of such notice, request and offer of indemnity have failed
to institute any such proceeding; and |
| (5) | no direction inconsistent with such written request has been given to the Trustees during such 60-day period
by the Holders of a majority or more in principal amount of the Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 5.01, or in the case of any Event of Default described in clause (5)
or (6) of Section 5.01, by the Holders of a majority or more in principal amount of all Outstanding Securities; |
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 Securities of the same series, in the case of any Event of Default described in
clause (1), (2), (3), (4) or (7) of Section 5.01, or of Holders of all Securities in the case of any Event of Default described
in clause (5) or (6) of Section 5.01, 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 Securities of the same series, in the case of any Event of Default described in clause (1), (2), (3), (4) or (7) of Section 5.01,
or of Holders of all Securities in the case of any Event of Default described in clause (5) or (6) of Section 5.01.
Section 5.08 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 Fourteen) and in such Security, of the principal of and premium (if any) and (subject to
Section 3.07) interest (if any) on, such Security on the respective Stated Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date or, in the case of repayment at the option of the Holder as contemplated by Article Twelve, on the
Repayment Date) and subject to the limitations on a Holder’s ability to institute suit contained Section 5.07, to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09 Restoration
of Rights and Remedies.
If either 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 such Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustees and the Holders of Securities shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustees 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 in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustees or to the Holders of Securities 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 Trustees
or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustees or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustees or
by the Holders, as the case may be.
Section 5.12 Control
by Holders.
With respect to the Securities
of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust
or power conferred on the Trustees, relating to or arising under clause (1), (2), (3), (4) or (7) of Section 5.01, and, with
respect to all Securities, the Holders of not less than a majority in principal amount of all Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustees, or exercising any trust or
power conferred on the Trustees, not relating to or arising under clause (1), (2), (3), (4) or (7) of Section 5.01, provided
that in each case
| (1) | such direction shall not be in conflict with any rule of law or with this Indenture, |
| (2) | the Trustees may take any other action deemed proper by the Trustees which is not inconsistent with such
direction, and |
| (3) | the Trustees need not take any action which might involve them in personal liability or be unjustly prejudicial
to the Holders of Securities of such series not consenting. |
Section 5.13 Waiver
of Past Defaults.
Subject to Section 5.02,
the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past Default described in clause (1), (2), (3), (4) or (7) of Section 5.01 (or,
in the case of a Default described in clause (5) or (6) of Section 5.01, the Holders of not less than a majority in principal
amount of all Outstanding Securities may waive any such past Default), and its consequences, except a default
| (1) | in respect of the payment of the principal of, premium (if any) or interest (if any) on any Security, or |
| (2) | in respect of a covenant or provision herein which under Article Nine cannot be modified or amended
without the consent of the Holder of each outstanding Security of such series affected. |
Upon any such waiver, any such
Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 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 Trustees, 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.
In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against either Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in Trust Indenture Legislation; provided, however, that
neither this Section 5.15 nor the provisions of TIA Section 315(e) shall apply to any suit instituted by either Trustee or by any
Holder or group of Holders holding more than 10% in principal amount of all Outstanding Securities or by any Holder of any Security on
any suit for the enforcement of the right to receive the principal of and interest on any such Securities.
ARTICLE Six
THE TRUSTEES
Section 6.01 Notice
of Defaults.
Each Trustee shall promptly give
the other Trustee notice of any Default or Event of Default known to it. Within a reasonable time, but no more than 30 days after
either Trustee has knowledge of any Default hereunder with respect to the Securities of any series, one or both of the Trustees shall
transmit in the manner and to the extent provided in Trust Indenture Legislation, including TIA Section 313(c), notice to the Holders
of such Default hereunder known to either Trustee, unless such Default shall have been cured or waived (and, in the case where such Default
shall have been cured, the Trustees shall notify the Holders in writing of such cure in writing within a reasonable time, but not exceeding
30 days, after the Trustees have become aware that the Default has been cured); provided, however, that, except in the case of
a Default in the payment of the principal of, 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 Trustees 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 each Trustee
in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such series; provided
further that in the case of any Default of the character specified in clause (4) of Section 5.01 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 6.02 Certain
Duties and Responsibilities of Trustees.
(a) The
Trustees, prior to the occurrence of an Event of Default and after the curing of all Events of Default that may have occurred, shall undertake
to perform with respect to the Securities of any series such duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the Trustees.
(b) In
all instances, in the exercise of the powers, rights, duties and discharge of obligations prescribed or conferred by the terms of this
Indenture, each Trustee shall act honestly and in good faith with a view to the best interests of the Holders and exercise that degree
of care, diligence and skill that a reasonably prudent trustee in respect of indentures for the purpose of issuing corporate debt obligations
would exercise in comparable circumstances.
(c) No
provision of this Indenture shall be construed to relieve each Trustee from liability for its own actions or failure to act in accordance
with Subsection 6.02(b), except that:
| (i) | prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default
that may have occurred: |
| (A) | the duties and obligations of each Trustee with respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the Trustees shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture
against the Trustees; and |
| (B) | in the absence of bad faith on the part of either Trustee, such Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustees and conforming to the requirements of this Indenture and Trust Indenture Legislation; but in the case of any such certificates
or opinions that by any provision hereof are specifically required to be furnished to the Trustees, the Trustees shall be under a duty
to examine the same to determine whether or not they conform to the requirements of this Indenture; provided, however, the Canadian
Trustee shall not be required to determine whether the certificates or opinions presented to it conform to the Trust Indenture Act and
the U.S. Trustee shall not be required to determine whether the certificates or opinions presented to it conform to Canadian Trust Indenture
Legislation. |
| (ii) | the Trustees shall not be liable with respect to any action taken or omitted to be taken by them in good
faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Securities of any series
at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustees,
or exercising any trust or power conferred upon the Trustees under this Indenture; |
| (iii) | none of the provisions contained in this Indenture shall require either Trustee to expend or risk their own
funds or otherwise incur personal or any financial liability in the performance of any of their duties or in the exercise of any of their
rights or powers; and |
| (iv) | whether or not therein expressly so provided, except to the extent expressly provided herein to the contrary,
every provision of this Indenture relating to the conduct or effecting the liability or affording protection to the Trustees shall be
subject to the provisions of this Section 6.02. |
(d) Notwithstanding
the provisions of this Section 6.02 or any provision in this Indenture or in the Securities, the Trustees will not be charged with
knowledge of the existence of any Event of Default or any other fact that would prohibit the making of any payment of monies to or by
the Trustees, or the taking of any other action by the Trustees, unless and until the Trustees have received written notice thereof from
the Company or any Holder.
Section 6.03 Certain
Rights of Trustees.
Subject to the provisions of
TIA Sections 315(a) through 315(d):
| (1) | the Trustees may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by them 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 Trustees shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action hereunder, each Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate; |
| (4) | the Trustees 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 them hereunder in good faith
and in reliance thereon; |
| (5) | the Trustees 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 pursuant to this Indenture, unless such Holders shall have
offered to the Trustees reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by them in
compliance with such request or direction; |
| (6) | the Trustees 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 Trustees, in their discretion, may make such further inquiry or investigation into
such facts or matters as they may see fit, and, if the Trustees shall determine to make such further inquiry or investigation, they shall
be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; |
| (7) | in an Event of Default, the Trustees’ powers shall not be infringed upon so long as they act in accordance
with Section 6.02(b); |
| (8) | the Trustees 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 Trustees shall not be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by them hereunder; and |
| (9) | the Trustees shall not be liable for any action taken, suffered or omitted by them in good faith and believed
by them to be authorized or within the discretion or rights or powers conferred upon them by this Indenture, so long as they act in accordance
with this Section 6.02(b). |
Section 6.04 Trustees
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein
and in the Securities, except for a Trustee’s certificate of authentication, shall be taken as the statements of the Company, and
neither Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustees make no representations as
to the validity or sufficiency of this Indenture or of the Securities , except that the Trustees represent that they are duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform their obligations hereunder and that the statements made
by the U.S. Trustee in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities
or the proceeds thereof. Nothing herein contained will impose on either Trustee any obligation to see to, or to require evidence of, the
registration or filing (or renewal thereof) of this Indenture or any supplemental indenture. The Trustees shall not be bound to give notice
to any person of the execution hereof.
Section 6.05 May
Hold Securities.
The Trustees, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustees, in their individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company, including, without limitation, as a creditor of the Company, with the same rights they would have if they were not Trustees,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. A Trustee that has resigned or is removed shall remain subject
to TIA Section 311(a) to the extent provided therein.
Section 6.06 Money
Held in Trust.
Money held by the Trustees in
trust hereunder need not be segregated from other funds except to the extent required by law. The Trustees shall be under no liability
for interest on any money received by them hereunder except as otherwise agreed with the Company.
Section 6.07 Compensation
and Reimbursement.
The Company agrees:
| (1) | to pay to the Trustees from time to time reasonable compensation for all services rendered by them 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 Trustees upon their request for all reasonable
expenses, disbursements and advances incurred or made by the Trustees in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of their agents and counsel), except any such expense, disbursement or advance
as may be attributable to the U.S. Trustee’s gross negligence or bad faith or the Canadian Trustee’s gross negligence or willful
misconduct, respectively; and |
| (3) | to indemnify the Trustees for, and to hold them and their directors, officers, agents, representatives, successors,
assigns and employees harmless against, any loss, liability or expense incurred without gross negligence or bad faith on the part of the
U.S. Trustee, or gross negligence or willful misconduct on the part of the Canadian Trustee, respectively, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder, including reasonable attorneys’ fees and other reasonable
costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their
powers or duties hereunder. |
The obligations of the Company
under this Section 6.07 to compensate the Trustees, to pay or reimburse the Trustees for expenses, disbursements and advances and to indemnify
and hold harmless the Trustees shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture and the resignation or removal of the Trustee. As security for the performance of such obligations of the Company, the
Trustees shall have a claim prior to the Securities upon all property and funds held or collected by the Trustees as such, except funds
held in trust for the payment of principal of, premium (if any) or interest (if any) on particular Securities.
When the Trustees incur expenses
or render services in connection with an Event of Default specified in clause (5) or (6) of Section 5.01, 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 United States or Canadian federal, state or provincial bankruptcy, insolvency or other similar law.
The provisions of this Section
6.07 shall survive the termination of this Indenture.
Section 6.08 Corporate
Trustees Required; Eligibility.
| (1) | There shall be at all times a U.S. Trustee hereunder which shall be eligible to act as Trustee under TIA
Section 310(a)(1) and, together with its immediate parent, shall have a combined capital and surplus of at least $50,000,000. If
the U.S. Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of United States federal, state,
territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 6.08, the combined capital
and surplus of U.S. Trustee 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 U.S. Trustee shall cease to be eligible in accordance with the provisions of this Section 6.08, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article Six. |
| (2) | For so long as required by Trust Indenture Legislation, there shall be a Canadian Trustee under this Indenture.
The Canadian Trustee shall at all times be a resident or authorized to do business in the Province of [British Columbia] and any other
province in Canada where Holders may be resident from time to time. The Canadian Trustee represents and warrants that no material conflict
of interest exists in the Canadian Trustee’s role as a fiduciary hereunder and agrees that in the event of a material conflict of
interest arising hereafter it will, within 30 days after ascertaining that it has such material conflict of interest, either eliminate
the same or resign its trust hereunder. If any such material conflict of interests exists or hereafter shall exist, the validity and enforceability
of this Indenture shall not be affected in any manner whatsoever by reason thereof. |
| (3) | The Trustees will not be required to give any bond or security in respect of the execution of the trusts
and powers set out in this Indenture or otherwise in respect of the premises. |
| (4) | Neither Trustee nor any Affiliate of either Trustee shall be appointed a receiver or receiver and manager
or liquidator of all or any part of the assets or undertaking of the Company. |
Section 6.09 Resignation
and Removal; Appointment of Successor.
| (1) | No resignation or removal of either Trustee and no appointment of a successor Trustee pursuant to this Article
Six shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements
of Section 6.10. |
| (2) | Either Trustee may resign at any time with respect to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been
delivered to such 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. |
| (3) | Either Trustee may be removed following 30 days’ notice at any time with respect to the Securities
of any series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, delivered
to such Trustee and to the Company. |
| (i) | either Trustee shall acquire any conflicting interest as defined in TIA Section 310(b) and fail to comply
with the provisions of TIA Section 310(b)(i), or |
| (ii) | either Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or |
| (iii) | either Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or |
| (iv) | either Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, |
then, in any such case,
(i) the Company, by a Board Resolution, may remove such Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
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 removal of such Trustee with respect to all Securities of such
series and the appointment of a successor Trustee or Trustees.
| (5) | If either Trustee shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of the U.S. Trustee or the Canadian 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)
provided, however, that the Company shall not be required to appoint a successor Trustee to the Canadian Trustee if the Canadian
Trustee resigns or is removed and a Canadian Trustee under this Indenture is no longer required under Trust Indenture Legislation. 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. |
| (6) | The Company shall give notice of each resignation and each removal of a 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 1.07. 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. |
| (7) | If a Canadian Trustee under this Indenture is no longer required by Trust Indenture Legislation, then the
Company by a Board Resolution may remove the Canadian Trustee. |
Section 6.10 Acceptance
of Appointment by Successor.
| (1) | In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder. |
| (2) | 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 1.01 which contemplate
such situation. |
| (3) | Upon reasonable 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 (1)
or (2) of this Section 6.10, as the case may be. |
| (4) | No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article Six. |
Section 6.11 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which either
Trustee or its corporate trust business may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which either Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of either Trustee, shall be the successor of such Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by a 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 such 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 6.12 Appointment
of Authenticating Agent.
At any time when any of the Securities
remain outstanding, the Trustees 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 Trustees to authenticate Securities of such series and the Trustees 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 1.07. 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 applicable Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustees, 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 Trustees or either Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustees by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustees 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 or the laws of Canada or any province thereof, 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 United States federal or state or Canadian federal or provincial 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 6.12,
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 6.12, it shall resign immediately in the manner and with the effect specified in this Section 6.12.
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 6.12, without the execution or filing of any paper or any further act on the part of the Trustees or the Authenticating
Agent.
An Authenticating Agent may resign
at any time by giving written notice thereof to the Trustees and to the Company. The Trustees 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 6.12, the Trustees 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 1.07. 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
6.12.
The Trustees agree to pay to
each Authenticating Agent from time to time reasonable compensation for its services under this Section 6.12, and the Trustees shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 6.07.
If an appointment with respect
to one or more series is made pursuant to this Section 6.12, the Securities of such series may have endorsed thereon, in addition to either
Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
(Certificate of Authentication may be executed by
either Trustee)
_____________________, as U.S.
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ____________
| |
__________________________, |
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as U.S. Trustee |
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By: |
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As Authenticating Agent |
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By: |
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|
Authorized Officer |
_____________________, as Canadian
Trustee, certifies that this is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated: ____________
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__________________________, |
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as Canadian Trustee |
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|
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By: |
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As Authenticating Agent |
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By: |
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Authorized Officer |
Section 6.13 Joint
Trustees.
The rights, powers, duties and
obligations conferred and imposed upon the Trustees are conferred and imposed upon and shall be exercised and performed by the U.S. Trustee
and the Canadian Trustee individually, except to the extent the Trustees are required under Trust Indenture Legislation to perform such
acts jointly, and neither Trustee shall be liable or responsible for the acts or omissions of the other Trustee. If the U.S. Trustee and
Canadian Trustee are unable to agree jointly to act or refrain from acting, the applicable Trustee shall make the decision in accordance
with its applicable legislation. Unless the context implies or requires otherwise, any written notice, request, direction, certificate,
instruction, opinion or other document (each such document, a “Writing”) delivered pursuant to any provision of this
Indenture to any of the U.S. Trustee or the Canadian Trustee shall be deemed for all purposes of this Indenture as delivery of such Writing
to the Trustee. Each such Trustee in receipt of such Writing shall notify such other Trustee of its receipt of such Writing within two
Business Days of such receipt provided, however, that any failure of such trustee in receipt of such Writing to so notify such
other Trustee shall not be deemed as a deficiency in the delivery of such Writing to the Trustee.
Section 6.14 Other
Rights of Trustees.
Each Trustee shall retain the
right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, either
Trustee, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering
or anti-terrorist legislation, regulation or guideline. Further, should either Trustee, in its sole judgment, determine at any time that
its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist
legislation, regulation or guideline, then it shall have the right to resign on 10 days written notice to all parties provided (i) that
such Trustee’s written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances
are rectified to such Trustee’s satisfaction within such 10 day period, then such resignation shall not be effective.
The parties hereto acknowledge
that Canadian federal and provincial legislation addressing the protection of individuals’ personal information (collectively, “Privacy
Laws”) applies to obligations and activities under this Indenture. Despite any other provision of this Indenture, neither party
shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. The Company, prior to
transferring, or causing to be transferred, personal information to the Canadian Trustee, shall obtain and retain required consents of
the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents
either have been previously given and can be relied on or are not required under Privacy Laws. The Canadian Trustee shall use commercially
reasonable efforts to ensure that its services hereunder comply with Privacy Laws. Specifically, the Trustee agrees to (i) have designated
a chief privacy officer; (ii) maintain policies and procedures to protect personal information and to receive and respond to any
privacy complaint or inquiry; (iii) use personal information solely for the purposes of providing its services under or ancillary
to this Indenture and not to use it for any other purpose except with the consent and direction of the Company; (iv) not sell or
otherwise improperly disclose personal information to any third party; and (v) use employee administrative, physical and technological
safeguards to reasonably secure and protect personal information against loss, theft or unauthorized access, use or modification.
It is expressly acknowledged
and agreed that the Canadian Trustee may, in the course of providing services hereunder, collect or receive, use and disclose financial
and other personal information about such parties and/or their representatives, as individuals, or about other individuals related to
the subject matter hereof, and use such information for the following purposes:
| (i) | to provide the services required under this Indenture and other services that may be requested from time
to time; |
| (ii) | to help the Canadian Trustee manage its servicing relationships with such individuals; |
| (iii) | to meet the Canadian Trustee’s legal and regulatory requirements; and |
| (iv) | if social insurance numbers are collected by the Canadian Trustee, to perform tax reporting and to assist
in verification of an individual’s identity for security purposes. |
Further, each party agrees that
it shall not provide or cause to be provided to the Canadian Trustee any personal information relating to an individual who is not a party
to this Indenture unless that party has assured itself that such individual understands and has consented to the aforementioned uses and
disclosures. Notwithstanding anything to the contrary herein, the Company and the Trustees may, without liability, disclose information
about the Holders and beneficial owners or potential Holders or potential beneficial owners of the Securities pursuant to subpoena or
other order issued by a court of competent jurisdiction or when otherwise required by applicable law.
Each Trustee hereby accepts the
trusts in this Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein set forth and to
hold all rights, privileges and benefits conferred hereby and by law in trust for the various persons who shall from time to time be holders,
subject to all the terms and conditions herein set forth.
ARTICLE Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company
to Furnish Trustees Names and Addresses of Holders.
The Company will furnish or cause
to be furnished to the Trustees (1) not more than 15 days after each Regular Record Date, or such lesser time as required by
the Trustees, a list, in such form as the Trustees may reasonably require, of the names and addresses of Holders as of such Regular Record
Date; provided, however, that the Company shall not be obligated to furnish or cause to be furnished such list at any time that
the list shall not differ in any respect from the most recent list furnished to the Trustees by the Company or at such times as either
Trustee is acting as Security Registrar for the applicable series of Securities and (2) at such other times as the Trustees 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.
Section 7.02 Preservation
of List of Names and Addresses of Holders.
The Trustees shall preserve,
in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most
recent list furnished to them as provided in Section 7.01 and as to the names and addresses of Holders received by either Trustee
in its capacity as Security Registrar for the applicable series of Securities (if acting in such capacity).
The Trustees may destroy any
list furnished as provided in Section 7.01 upon receipt of a new list so furnished.
Holders may communicate as provided
in TIA Section 312(b) with other Holders with respect to their rights under this Indenture or under the Securities.
Section 7.03 Disclosure
of Names and Addresses of Holders.
Every Holder of Securities ,
by receiving and holding the same, agrees with the Company and the Trustees that none of the Company or the Trustees or any agent of either
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 Trustees shall not
be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 7.04 Reports
by Trustees.
| (1) | Within 60 days after May 15 of each year commencing with the first year after the first issuance
of Securities pursuant to this Indenture, the U.S. Trustee shall transmit to the Holders of Securities, in the manner and to the extent
provided in TIA Section 313(c), a brief report dated as of such reporting date, if required by TIA Section 313(a). |
| (2) | The U.S. Trustee shall comply with TIA Sections 313(b) and 313(c). |
| (3) | A copy of such report shall, at the time of such transmission to the Holders, be filed by the U.S. Trustee
with the Company, with each securities exchange upon which any of the Securities are listed (if so listed) and also with the Commission.
The Company agrees to notify the Trustees when the Securities become listed on any securities exchange. |
Section 7.05 Reports
by the Company.
| (1) | The Company will file with the Trustees, within 20 days after filing with or furnishing to the Commission,
copies of its annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as
the Commission may by rules and regulations prescribe) which the Company is required to file or furnish with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act or, if the Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustees and the Commission, in accordance with rules and regulations prescribed by the
Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed in such rules and
regulations; provided that any such reports, information or documents filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system shall be deemed filed with the Trustees. |
| (2) | The Company will transmit to all Holders, in the manner and to the extent provided in TIA Section 313(c),
within 30 days after the filing thereof with the Trustees, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraph (1) of this Section 7.05 as may be required by rules and regulations prescribed from time
to time by the Commission. |
| (3) | If at any time the Securities are guaranteed by a direct or indirect parent of the Company, and such parent
has furnished the reports required by this Section 7.05 with respect to parent as required by this Section 7.05 as if parent were the
Company (including any financial information required hereby), the Company shall be deemed to be in compliance with this Section 7.05. |
ARTICLE Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company
May Consolidate, etc., only on Certain Terms.
The Company shall not amalgamate
or consolidate with or merge into or enter into any statutory arrangement with any other Person, or, directly or indirectly, convey, transfer
or lease all or substantially all of its properties and assets to any Person, unless:
| (1) | the Person formed by or continuing from such amalgamation or consolidation or into which the Company is merged
or with which it enters into such statutory arrangement or the Person which acquires by operation of law or by conveyance or transfer,
or which leases, all or substantially all of the properties and assets of the Company shall be a corporation, partnership or trust organized
and validly existing under the laws of Canada or any province or territory thereof, the United States of America or any state thereof
or the District of Columbia or, if such amalgamation, consolidation, merger, statutory arrangement or other transaction would not impair
the rights of Holders, any other country, and, unless the Company is the continuing corporation, shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustees, in form satisfactory to the Trustees, the Company’s obligation for
the due and punctual payment of the principal of, premium (if any) and interest (if any) on all the Securities and the performance and
observance of every covenant of this Indenture on the part of the Company to be performed or observed; |
| (2) | immediately after giving effect to such transaction, no Default or Event of Default shall have happened and
be continuing; and |
| (3) | the Company or such Person shall have delivered to the Trustees an Officer’s Certificate and an Opinion
of Counsel, each stating that such amalgamation, consolidation, merger, statutory arrangement or other transaction and such supplemental
indenture comply with this Article Eight and that all conditions precedent herein provided for relating to such transaction have been
complied with. |
Notwithstanding the above,
the Company may consolidate with, amalgamate with, undergo an arrangement with, merge with or into an Affiliate of the Company solely
for the purpose of reincorporating the Company in a state of the United States or the District of Columbia or in another province or territory
of Canada.
This Section 8.01 shall only
apply to a merger, consolidation or amalgamation in which the Company is not the surviving Person and to conveyances, leases and transfers
by the Company as transferor or lessor.
Section 8.02 Successor
Person Substituted.
Upon any amalgamation or consolidation
by the Company with or merger by the Company into any other corporation or a statutory arrangement or any conveyance, transfer or lease
of all or substantially all of the properties and assets of the Company to any Person in accordance with Section 8.01, the successor
Person formed by such amalgamation or consolidation or into which the Company is merged or statutory arrangement, or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and in the event of any such conveyance
or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph
of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 8.01), except in
the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and may be dissolved
and liquidated.
ARTICLE Nine
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without Consent of Holders.
Notwithstanding Section 9.02,
without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution, and the Trustees, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustees, for any of the following
purposes:
| (1) | to evidence the succession of another Person to the Company and the assumption by any such successor of the
covenants of the Company contained herein and in the Securities; or |
| (2) | to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or |
| (3) | to add any additional Events of Default (and if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); or |
| (4) | to delete or modify any Events of Default with respect to a series of the Securities, the form and terms
of which are being established pursuant to such supplemental indenture as permitted in Section 3.01; 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 establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or |
| (7) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10;
or |
| (8) | to close this Indenture with respect to the authentication and delivery of additional series of Securities;
or |
| (9) | to cure any ambiguity or to correct or supplement any provision contained herein or in any indenture supplemental
hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform
the terms hereof, as amended and supplemented, that are applicable to the Securities of any series to the description of the terms of
such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time
of initial sale thereof; or |
| (10) | to make any change in any series of Securities that does not adversely affect in any material respect the
rights of the Holders of such Securities; or |
| (11) | to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance
with any amendments to the Trust Indenture Act; or |
| (12) | 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 4.01, 14.02 and 14.03; provided that any such
action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material
respect; or |
| (13) | to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect
the qualifications of this Indenture under any applicable law of the United States and Canada or of any province or territory thereof
to the extent they do not conflict with the applicable law of the United States heretofore or hereafter enacted. |
Section 9.02 Supplemental
Indentures with Consent of Holders.
Except as provided in Section
9.01 and this Section 9.02, with the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities
affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustees, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustees 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, premium (if any) or any installment of interest (if any)
on any Security of such series, or reduce the principal amount thereof, premium (if any) or the rate of interest (if any) thereon, or
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 5.02 or the amount thereof provable in bankruptcy pursuant to Section 5.04,
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 3.01 herein, or |
| (2) | reduce the percentage in principal amount of the Outstanding Securities of such series required for any such
supplemental indenture, or the consent of whose Holders is required 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 this Indenture,
or |
| (3) | modify any of the provisions of this 9.02 Section, Section 5.13 or Section 10.09, 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. |
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other 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 9.02 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 9.03 Execution
of Supplemental Indentures.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trusts created
by this Indenture, the Trustees 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. Each Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects such Trustee’s own rights, duties or immunities under this Indenture
or otherwise.
Section 9.04 Effect
of Supplemental Indentures.
Upon the execution of any supplemental
indenture under this Article Nine, 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 9.05 Conformity
with Trust Indenture Legislation.
Every supplemental indenture
executed pursuant to this Article Nine shall conform to the requirements of Trust Indenture Legislation as then in effect.
Section 9.06 Reference
in Securities to Supplemental Indentures.
Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustees,
bear a notation in form approved by the Trustees 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 Trustees
and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and delivered by the Trustees in exchange for outstanding Securities
of such series.
Section 9.07 Notice
of Supplemental Indentures.
Promptly after the execution
by the Company and the Trustees of any supplemental indenture pursuant to the provisions of Section 9.02, the Company shall give
notice thereof to the Holders of each outstanding Security affected, in the manner provided for in Section 1.07, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE Ten
COVENANTS
Section 10.01 Payment
of Principal, Premium and Interest.
The Company covenants and agrees
for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of, premium (if any) and
interest (if any), on the Securities of that series in accordance with the terms of the Securities and this Indenture.
Section 10.02 Maintenance
of Office or Agency.
| (1) | 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 . |
| (2) | The Company will give prompt written notice to the Trustees of the location, and any change in the location,
of 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 Trustees with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Offices of the Trustees. |
| (3) | 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 Trustees 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 3.01 with respect to a series of
Securities, the Company hereby initially appoints the U.S. Trustee at its Corporate Trust Office as Paying Agent in such city and as its
agent to receive all such presentations, surrenders, notices and demands. |
| (4) | Unless otherwise specified with respect to any Securities pursuant to Section 3.01, 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 10.03 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 , it will, on or before each due date of the principal of, 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 otherwise specified pursuant to Section 3.01
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, 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 Trustees of its action or failure so to act.
Whenever the Company shall have
one or more Paying Agents for any series of Securities, it will, prior to or on each due date of the principal of, 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, 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 a Trustee) the Company will promptly notify
the Trustees of its action or failure so to act.
The Company will cause each Paying
Agent (other than the Trustees) for any series of Securities to execute and deliver to the Trustees an instrument in which such Paying
Agent shall agree with the Trustees, subject to the provisions of this 10.03 Section, that such Paying Agent will:
| (1) | hold all sums held by it for the payment of the principal of, 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 Trustees 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, 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 Trustees, forthwith
pay to the Trustees 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 Trustees all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustees
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 Trustees, 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 Trustees or any Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium (if any) or interest (if any) on any Security of any series, and remaining unclaimed for two years after such principal,
premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof,
and all liability of the Trustees or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
Section 10.04 Statement
as to Compliance.
The Company shall deliver to
the Trustees, on or before 120 days after the end of the Company’s fiscal year, an Officer’s Certificate stating that a review
of the activities of the Company during such fiscal year has been made under the supervision of the signing Officer with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such
Officer, that the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred and is continuing, describing all such Defaults or Events of Default of which he or she may have knowledge and what action
the Company is taking or propose to take with respect thereto). The Company shall deliver to the Trustees upon demand evidence in such
form as the Trustees may require as to compliance by the Company with any condition or covenant of the Company set out herein relating
to any action required or permitted to be taken by the Company under this Indenture or as a result of any obligation imposed by this Indenture.
For purposes of this Section 10.04, such compliance shall be determined without regard to any period of grace or requirement of notice
under this Indenture.
Section 10.05 Payment
of Taxes and Other Claims.
The Company will pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental
charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (2) all material lawful claims
for labor, materials and supplies which, if unpaid, might by law become a Lien upon any property or assets of the Company; provided,
however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
Section 10.06 Corporate
Existence.
Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and
the rights (charter and statutory) and franchises of the Company; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company.
Section 10.07 Waiver
of Certain Covenants.
The Company may, with respect
to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series
set forth in Sections 10.06 and 10.07, or, as specified pursuant to Section 3.01(19) for Securities of such series, in any covenants
of the Company added to this Article Ten pursuant to Section 3.01(19) in connection with Securities of such series, if before the
time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of any 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 Trustees to Holders of Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE Eleven
REDEMPTION OF SECURITIES
Section 11.01 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 3.01 for Securities of any series) in accordance with this Article Eleven.
Section 11.02 Election
to Redeem; Notice to Trustees.
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 Trustees), notify the Trustees of such Redemption Date and of the principal amount of Securities of such series to be redeemed
and, in the case of certificated Securities, shall deliver to the Trustees such documentation and records as shall enable the Trustees
to select the Securities to be redeemed pursuant to Section 11.03. 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
to the Trustees an Officer’s Certificate evidencing compliance with such restriction.
Section 11.03 Selection
by Trustees of Securities to Be Redeemed.
If less than all the Securities
of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustees, from the Outstanding Securities of such series not previously called for redemption, in the case of certificated
Securities, by such method as the Trustees shall deem fair and appropriate and which may provide for the selection for redemption of portions
of the principal of Securities of such series, or in the case of Securities in global form in accordance with the policies and procedures
of the applicable Depositary; 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 3.01.
The Trustees shall promptly notify
the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 11.04 Notice
of Redemption.
Except as otherwise specified
as contemplated by Section 3.01, notice of redemption shall be given in the manner provided for in Section 1.07 not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. Failure to give notice in the
manner provided in Section 1.07 to the Holder of any Securities designated for redemption as a whole or in part, or any defect in
the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion
thereof.
All notices of redemption shall
state:
| (2) | the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 11.06,
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 11.06 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 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, and |
| (8) | if applicable, any condition to such redemption. |
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 Trustees in the
name and at the expense of the Company.
Section 11.05 Deposit
of Redemption Price.
Prior to any Redemption Date,
the Company shall deposit with a 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 10.03) an amount of money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 3.01 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 Redemption Price of, and accrued interest (if any) on, all the Securities which are to be redeemed
on that date.
Section 11.06 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 as otherwise specified pursuant to Section 3.01
for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(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. Upon
surrender of any such Security for redemption in accordance with said notice, 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 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 3.07.
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 11.07 Securities
Redeemed in Part.
Any Security which is to be redeemed
only in part (pursuant to the provisions of this Article Eleven or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustees so requires, due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustees duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and
the Company shall execute, and the applicable 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 Twelve
SINKING FUNDS
Section 12.01 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 3.01 for Securities of any series) in accordance with this Article Twelve.
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 12.02. 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 12.02 Satisfaction
of Sinking Fund Payments with Securities.
Subject to Section 12.03,
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 Trustees Outstanding Securities of a such series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company, and/or (2) receive credit for the principal amount of Securities of such
series which have been previously delivered to the Trustees by the Company or 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 Trustees
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 12.03 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 Trustees an Officer’s 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 as otherwise
specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) and the portion thereof, if any, which is to be satisfied by delivering or crediting Securities of that series pursuant
to Section 12.02 (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 12.02 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 Trustees shall select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 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 11.04. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.06 and 11.07.
Prior to any sinking fund payment
date, the Company shall pay to the Trustees or a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) 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 12.03 Section.
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 Trustees, 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 Trustees or any Paying Agent will be reimbursed by the Company) not in excess of the principal
amount thereof.
ARTICLE Thirteen
REPAYMENT AT OPTION OF HOLDERS
Section 13.01 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 3.01 for Securities of any series) in accordance with this Article Thirteen.
Section 13.02 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 such Securities, on or before the Repayment
Date it will deposit with a 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 10.03) an amount of money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 3.01 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 (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 13.03 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
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 13.04 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 Thirteen 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) such Securities shall, if the same were interest- bearing,
cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions, 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, in the case of 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 3.07.
If any Security surrendered for
repayment shall not be so repaid upon surrender thereof for repayment, the principal amount and premium (if any) 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 13.05 Securities
Repaid in Part.
Upon surrender of any Security
which is to be repaid in part only, the Company shall execute and the applicable Trustee shall authenticate and deliver to the Holder
of such Security, without service charge and at the expense of the Company, a new Security or Securities of the same series, 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 Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Company’s
Option to Effect Defeasance or Covenant Defeasance.
Except as otherwise specified
as contemplated by Section 3.01 for Securities of any series, the provisions of this Article Fourteen shall apply to each series
of Securities, and the Company may, at its option, effect defeasance of the Securities of or within a series under Section 14.02,
or covenant defeasance of or within a series under Section 14.03 in accordance with the terms of such Securities and in accordance
with this Article Fourteen.
Section 14.02 Defeasance
and Discharge.
Upon the Company’s exercise
of the above option applicable to this Section 14.02 with respect to any Securities of or within a series, the Company shall be deemed
to have been discharged from its obligations with respect to such Securities on the date the conditions set forth in Section 14.04
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 Securities, which shall thereafter be deemed to be “Outstanding”
only for the purposes of Section 14.05 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustees, 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 Securities to receive, solely from the trust fund described
in Section 14.04 and as more fully set forth in such Section, payments in respect of the principal of, premium (if any) and interest
(if any) on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 3.05, 3.06, 10.02 and 10.03, (C) the rights, powers, trusts, duties and immunities of the Trustees hereunder and (D) this
Article Fourteen. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section 14.02 notwithstanding
the prior exercise of its option under Section 14.03 with respect to such Securities.
Section 14.03 Covenant
Defeasance.
Upon the Company’s exercise
of the above option applicable to this Section 14.03 with respect to any Securities of or within a series, the Company shall be released
from its obligations under Sections 10.05 and 10.06, and, if specified pursuant to Section 3.01, its obligations under any other
covenant, with respect to such Securities on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter,
“covenant defeasance”), and such Securities 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 Securities, 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 clauses (4) or (7) of Section 5.01 or otherwise
but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 14.04 Conditions
to Defeasance or Covenant Defeasance.
The following shall be the conditions
to application of either Section 14.02 or Section 14.03 to any Securities of or within a series:
| (1) | The Company shall irrevocably have deposited or caused to be deposited with either Trustee (or another trustee
satisfying the requirements of Section 6.08 who shall agree to comply with the provisions of this Article Fourteen 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, (A) an amount (in such Currency in which such Securities 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 and premium (if any) and interest (if any) under such Securities, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustees, to pay and discharge, and which shall be applied by the Trustees (or another trustee satisfying the requirements of Section
6.08 who shall agree to comply with the provisions of this Article Fourteen) to pay and discharge, (i) the principal of, premium
(if any) and interest (if any) on such Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal of, premium
(if any) or installment of interest (if any), (ii) any mandatory sinking fund payments or analogous payments applicable to such Securities
on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities, and (iii) all
amounts due the Trustees under Section 6.07; provided that the Trustees shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Company
may give to the Trustees, in accordance with Section 11.02, a notice of its election to redeem all or any portion of such Securities
at a future date in accordance with the terms of such Securities and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying the foregoing. |
| (2) | No Default or Event of Default with respect to such Securities shall have occurred and be continuing on the
date of such deposit or, insofar as clauses (5) and (6) of Section 5.01 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). |
| (3) | Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default
or an Event of Default under, this Indenture or any default under any material agreement or instrument to which the Company is a party
or by which it is bound. |
| (4) | In the case of an election under Section 14.02, the Company shall have delivered to the Trustees 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 United
States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance and will
be subject to United States 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. |
| (5) | In the case of an election under Section 14.03, the Company shall have delivered to the Trustees an
Opinion of Counsel in the United States to the effect that the Holders of such Securities will not recognize income, gain or loss for
United States federal income tax purposes as a result of such covenant defeasance and will be subject to United States 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. |
| (6) | The Company shall have delivered to the Trustees an Opinion of Counsel in Canada or a ruling from the Canada
Revenue Agency to the effect that the Holders of such Securities will not recognize income, gain or loss for Canadian federal, provincial
or territorial income tax or other tax purposes as a result of such defeasance or covenant defeasance, as applicable, and will be subject
to Canadian federal, provincial or territorial 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, as applicable, not occurred (and for the purposes of such opinion,
such Canadian counsel shall assume that Holders of such Securities include Holders who are not resident in Canada). |
| (7) | 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). |
| (8) | Notwithstanding any other provisions of this Section 14.04, 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 3.01. |
| (9) | The Company shall have delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for, relating to |
| | | either the defeasance under Section 14.02 or the covenant defeasance
under Section 14.03 (as the case may be), have been complied with. |
Section 14.05 Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of
the last paragraph of Section 10.03, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01)
(including the proceeds thereof) deposited with a Trustee (or another trustee satisfying the requirements of Section 6.08 who shall agree
to comply with the provisions of this Article Fourteen) pursuant to Section 14.04 in respect of such Securities shall be held in
trust and applied by such Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium (if any) and interest (if any) on such Securities 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 3.01, if, after a deposit referred to in Section 14.04(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 3.12(b) or the
terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 14.04(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 14.04(1) has been made, the indebtedness represented by such
Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, 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
such Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 14.04
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 Securities.
Anything in this Article Fourteen
to the contrary notwithstanding, such Trustee shall deliver or pay to the Company from time to time upon Company Request any money or
Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 14.04 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to such 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 Fourteen.
Section 14.06 Reinstatement.
If a Trustee or any Paying Agent
is unable to apply any money in accordance with Section 14.05 by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and such Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.02 or 14.03, as the case may be, until such
time as such Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 14.05; provided, however,
that if the Company makes any payment of principal of, premium (if any) or interest (if any) on any such Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
held by such Trustee or Paying Agent.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
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as Canadian Trustee |
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EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
NEW PACIFIC METALS CORP.
_____% Notes due _________________
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 owned by any person(s)
that is not 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 unless, in the case of a partnership, United States Treasury Regulations provide otherwise; any estate whose
income is subject to United States federal income tax regardless of its source; or a trust if (A) 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 (B) it was in existence on August 20, 1996 and has a valid election in effect under applicable United
States Treasury Regulations to be treated as a United States person (“United States persons(s)”), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United
States. United States 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 United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent,
that you may advise New Pacific Metals Corp. or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States 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
in writing 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]
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EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY THE DEPOSITARY
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
NEW PACIFIC METALS CORP.
_____% Notes due _________________
This is to certify that based
solely on written certifications that we have received in writing 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 owned
by any person(s) that is not 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 unless, in the case of a partnership, United States Treasury Regulations provide otherwise;
any estate whose income is subject to United States federal income tax regardless of its source; or a trust if (A) 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 (B) it was in existence on August 20, 1996 and has a valid election in effect under
applicable United States 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 United States financial institutions (financial institutions, as
defined in United States 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 United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise
New Pacific Metals Corp. or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States
or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States 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 as of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
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A-2-2
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