PROVINCE OF NEW BRUNSWICK US$750,000,000 FISCAL AGENCY AGREEMENT Dated as of June 16, 2011
Exhibit 99.8
EXECUTION VERSION
US$750,000,000
2.750% BONDS, SERIES HD, DUE JUNE 15, 2018
Dated as of June 16, 2011
FISCAL AGENCY AGREEMENT dated as of June 16, 2011, between the Province of New Brunswick (the
“Province”) and The Bank of New York Mellon, a corporation organized and existing under the
laws of the State of New York, as fiscal agent, transfer agent, registrar and principal paying
agent (the “Registrar”).
1. Underwriting Agreement. The Province entered into an underwriting agreement dated
as of June 9, 2011 (the “Underwriting Agreement”) with representatives of the several
underwriters listed on Schedule II thereto providing for the issue and sale by the Province of
US$750,000,000 aggregate principal amount of 2.750% Bonds, Series HD, due June 15, 2018 (the
“Bonds”).
2. Appointment of Registrar; Paying Agents; Additional Transfer Agent. (a) The
Province hereby appoints The Bank of New York Mellon, at present having its principal corporate
trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the Borough of Manhattan, The City
and State of New York, as fiscal agent, transfer agent, registrar and principal paying agent of the
Province for the Bonds, upon the terms and subject to the conditions set forth herein. The Bank of
New York Mellon accepts such appointments.
(b) The Province may from time to time appoint one or more additional agents (hereinafter
called a “Paying Agent” or the “Paying Agents”) for the payment (subject to the
applicable laws and regulations) of the principal of and interest and Additional Amounts (as
defined in the terms and conditions of the Bonds), if any, on the Bonds at such place or places as
the Province may determine pursuant to a written paying agency agreement (a “Paying Agency
Agreement”). In addition, the Province, with the acknowledgement of the Registrar, hereby
appoints The Bank of New York Mellon, One Canada Square, Xxxxxx XX0 0XX, Xxxxxxx, as its initial
Paying Agent in London, and The Bank of New York Mellon accepts such appointment. The Province may
at any time terminate the appointment of any Paying Agent; provided, however, (i) that for so long
as the Bonds are admitted to the Official List of the Financial Services Authority and to trading
on the London Stock Exchange plc’s Regulated Market and the rules of such stock exchange or the
rules of the Financial Services Authority (UK) so require, the Province will maintain a paying
agent in the United Kingdom and (ii) that the Province will maintain a paying agent in a Member
State of the European Union that will not be obligated to withhold or deduct tax pursuant to the
European Union Council Directive regarding the taxation of savings income (Directive 2003/48/EC)
(the “Directive”) or any other directive implementing the conclusions of the ECOFIN
council meeting of November 26-27, 2000, or any law implementing or complying with, or introduced
in order to conform to, such Directive. The Province will keep the Registrar informed as to the
name, address, and telephone and facsimile numbers of each Paying Agent appointed by it and will
notify the Registrar of the resignation of any Paying Agent. The Registrar shall arrange with each
Paying Agent for the payment, as provided herein, of the principal of and interest and Additional
Amounts, if any, on the Bonds on terms approved by the Province (further references herein to
principal and interest shall be deemed to also refer to any Additional Amounts).
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(c) The Province may from time to time appoint one or more additional agents for the
processing of applications for registration of transfer or exchange of fully registered Bonds in
definitive form (hereinafter referred to as an “Additional Transfer Agent” or
“Additional Transfer Agents” and, together with the Registrar, in its capacity as transfer
agent of the Province, the “Transfer Agents” or individually a “Transfer Agent”)
pursuant to a written transfer agency agreement (a “Transfer Agency Agreement”). The
Province may at any time terminate the appointment of any Additional Transfer Agent. The Province
will keep the Registrar informed as to the name, address and telephone and facsimile numbers of
each Additional Transfer Agent appointed by it and will notify the Registrar of the resignation or
termination of the appointment of any Additional Transfer Agent.
3. Form. (a) The Bonds shall initially be issued in the form of two fully registered
global certificates without coupons (such registered global certificates and any registered global
certificates issued upon any transfer or exchange thereof or in replacement therefor are
hereinafter referred to as the “Global Bonds”). The Global Bonds shall be registered in
the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”) and held by The
Bank of New York Mellon as custodian for DTC (“DTC Custodian”). As long as DTC or its
respective nominee is the registered holder of the Global Bonds, it will be considered the sole
owner and registered holder of the Bonds for all purposes hereunder and under the Global Bonds.
None of the Province, the Registrar or any Paying Agent will have any responsibility or liability
for any aspect of the records relating to or payments made by DTC or any DTC direct or indirect
participants including CDS Clearing and Depository Services Inc., Clearstream Banking, société
anonyme and Euroclear Bank S.A./N.V., on account of beneficial interests in the Global Bonds or for
maintaining, supervising or reviewing any records relating to such beneficial interests. Except as
provided in Section 6 hereof, owners of beneficial interests in the Global Bonds will not be
entitled to have Bonds registered in their names, will not receive or be entitled to receive Bonds
in definitive registered form and will not be considered registered holders thereof under this
Agreement. The Global Bonds will be substantially in the form attached hereto as Exhibit 1.
(b) All Bonds (including the Global Bonds) shall be executed on behalf of the Province by the
signature, manual or in facsimile, of the Minister of Finance or the manual signature of any one of
(i) the Deputy Minister of Finance, or (ii) the Assistant Deputy Minister (Treasury Division), or
Managing Director Capital Markets (Treasury Division), all of the Department of Finance, and shall
be sealed with the manual or facsimile seal of the Province. In the event that any official of the
Province who shall have signed or whose facsimile signature shall appear upon any of the Bonds
shall cease to hold such office before the Bonds so signed shall actually have been authenticated,
registered or delivered, such Bonds nevertheless may be authenticated, registered and delivered
with the same force and effect as though such person who signed such Bonds had not ceased to be
such official of the Province.
4. Authentication. The Registrar shall, upon receipt of Bonds duly executed and
sealed on behalf of the Province together with a written order or orders to authenticate and
deliver Bonds in a stated aggregate principal amount, (i) authenticate and register not more than
the said aggregate principal amount of Bonds and deliver them in accordance with the written order
or orders of the Province and (ii) thereafter authenticate, register and deliver Bonds in
accordance with the provisions of Sections 5, 6 and 8 of this Agreement. Except as described in
Section 9(d) hereof, the total amount of the Bonds to be issued and outstanding at any time,
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whether in the form of Global Bonds or Bonds in definitive registered form, issued in exchange
for the Global Bonds, shall not exceed US$750,000,000 in aggregate principal amount, plus the
aggregate principal amount of any additional Bonds issued by the Province pursuant to any
supplement hereto in accordance with Section 15 of this Agreement.
5. Registration, Transfers and Exchanges. (a) The Registrar, as agent of the
Province for such purpose, shall at all times keep at its principal office in the Borough of
Manhattan, The City and State of New York, a register or registers (hereinafter the
“Register” or “Registers”) for the registration and registration of transfers and
exchanges of Bonds, in which shall be entered the names and addresses of the registered holders of
Bonds and the principal amount of and other particulars of the Bonds held by them. Subject to
Section 6 hereof, upon surrender for registration of transfer of any Bond at said office, the
Registrar shall authenticate, register and deliver, in the name of the transferee or transferees, a
new Bond or Bonds for a like aggregate principal amount. Subject to Section 6 hereof, upon
surrender of any Bond at said office for exchange, the Registrar shall authenticate, register and
deliver, in exchange for such Bond, a new Bond or new Bonds of the appropriate authorized
denomination(s) and for a like aggregate principal amount in accordance with the provisions of the
Bonds. The Province and the Registrar shall not be required to make any exchange of Bonds if as a
result thereof, the Province would incur adverse tax or other similar consequences under the laws
or regulations of any jurisdiction in effect at the time of the exchange.
(b) All new Bonds authenticated and delivered by the Registrar upon registration of transfer
or in exchange for Bonds of other denominations shall be so dated that neither gain nor loss of
interest shall result from such registration of transfer or exchange.
(c) All Bonds presented or surrendered for registration of transfer, exchange or payment shall
be accompanied by a written instrument or instruments of transfer in form satisfactory to the
Registrar, duly executed by the registered holder or its attorney duly authorized in writing and
with the signatures thereon duly guaranteed by a commercial bank or trust company having its
principal office in The City of New York or by a member of the New York Stock Exchange.
(d) The Registrar and each Additional Transfer Agent shall not impose any service charge on
the registered holder on any such registration of transfer or exchange of Bonds in the normal
course of business; however, the Province may require of the party requesting such transfer or
exchange, as a condition precedent to the exercise of any right of transfer or exchange contained
in this Agreement or in the Bonds, the payment of a sum sufficient to cover any stamp or other tax
or other governmental charge payable in connection therewith.
(e) The Province, the Registrar and any Paying Agent or Additional Transfer Agent may treat
the person in whose name any Bond is registered as the absolute owner of such Bond for the purpose
of receiving payment of principal of and interest on such Bond, and all other purposes whatsoever,
whether or not such Bond be overdue, and none of the Province, the Registrar, any Paying Agent or
any Additional Transfer Agent shall be affected by any notice to the contrary and any such payment
shall be a good and sufficient discharge to the Province, the Registrar and any Paying Agent or
Additional Transfer Agent for the amount so paid.
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(f) The Registrar shall not be required to register any transfer or exchange of Bonds (and any
Additional Transfer Agent shall not be required to accept presentment of fully registered Bonds in
definitive form for registration of transfer or exchange by the Registrar) during the period (i)
from the Regular Record Date (as defined in the Bonds) to the Interest Payment Date (as defined in
the Bonds) or (ii) from the close of business on the fifteenth day preceding the date of early
redemption of the Bonds (the “Redemption Record Date”) to the date of early redemption of
the Bonds (the “Redemption Date”). For the purposes of any interest payment made in
accordance with Section 7(b) or (c) hereof, such payment shall be made to those persons in whose
names the Bonds are registered on such Regular Record Date or Redemption Record Date.
(g) Each Additional Transfer Agent, as agent of the Province for such purpose, shall maintain
an office in its jurisdiction at which fully registered Bonds in definitive form may be presented
for registration of transfer or exchange by the Registrar in accordance with this Agreement. Each
Additional Transfer Agent shall promptly forward to the Registrar all such Bonds received by it,
together with the written instrument or instruments of transfer referred to above.
6. Special Provisions Relating to the Global Bonds. (a) Unless any Global Bond is
presented by an authorized representative of DTC to the Province, the Registrar or their respective
agents for registration of transfer, exchange or payment, and any replacement Global Bonds issued
is registered in the name of a nominee of DTC as requested by such authorized representative and
any payment is made to such nominee of DTC, any transfer, pledge or other use of the Global Bonds
for value or otherwise shall be wrongful since the registered holder thereof has an interest
therein.
(b) Except as provided in this subparagraph, Bonds will not be issued in definitive registered
form. If at any time DTC notifies the Province that it is unwilling or unable to continue as
depository for the Global Bonds or if at any time DTC ceases to be a clearing agency registered
under the United States Securities Exchange Act of 1934, as amended, or otherwise ceases to be
eligible to be a depositary, the Province shall appoint a successor depositary with respect to the
Global Bonds. If a successor depositary for the Global Bonds is not appointed by the Province
within a reasonable period after the Province receives such notice or becomes aware of such
ineligibility, the Province shall execute and seal Bonds in definitive registered form, and the
Registrar, upon receipt thereof, shall authenticate and deliver such Bonds in definitive registered
form without coupons, in denominations of US$5,000 and integral multiples of US$1,000 for amounts
in excess of US$5,000, in an aggregate principal amount equal to the aggregate principal amount of
the Global Bonds as of the exchange date.
The Province may at any time and in its sole discretion determine not to have any of the Bonds
held in the form of the Global Bonds. In such event the Province shall execute and seal Bonds in
definitive registered form, and the Registrar, upon receipt thereof, shall authenticate and deliver
such Bonds in definitive registered form without coupons, in denominations of US$5,000 and integral
multiples of US$1,000 for amounts in excess of US$5,000, in an aggregate principal amount equal to
the aggregate principal amount of the Global Bonds as of the exchange date.
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Upon the exchange of the Global Bonds for Bonds in definitive registered form, the Registrar
shall cancel such Global Bonds and shall reduce the holdings of Cede & Co. on the Register to nil.
Bonds in definitive registered form issued in exchange for the Global Bonds pursuant to this
Section shall be registered in such names as DTC pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Registrar or the Province. The Registrar
shall deliver such Bonds in definitive registered form to or as directed by the persons in whose
names such definitive registered Bonds are so registered and, to the extent reasonably practicable
in the circumstances, shall direct all payments to be made in respect of such Bonds in definitive
registered form to the registered holders thereof on or after such exchange regardless of whether
such exchange occurred after the record date for such payment.
All Bonds in definitive registered form issued upon the exchange of the Global Bonds shall be
valid obligations of the Province, evidencing the same debt, entitled to the same benefits and
subject to the same terms and conditions (except insofar as they relate specifically to a Global
Bond) as the Global Bonds surrendered upon such exchange.
7. Payment. (a) The Province will pay to the Registrar, in same day funds, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts, to an account to be specified by the Registrar by 10:00 a.m.
(New York time) on the day on which the same shall become due (or the next succeeding Business Day
if such due date falls upon a day which is not a Business Day as defined below), all amounts to be
paid on the Bonds for principal and interest on that date as required by the terms of the Bonds,
and the Province hereby authorizes and directs the Registrar, from the funds so paid to it, to make
payment of the principal and interest in respect of the Bonds in accordance with their terms and
the provisions set forth below. For the purposes of this Section 7(a), “Business Day”
shall mean a day other than a Saturday or Sunday on which banking institutions in the City of New
York and the City of Toronto, Ontario are not authorized or obligated by law or executive order to
be closed.
(b) Payment of principal of and interest on the Global Bonds shall be made by the Registrar to
Cede & Co., as nominee of DTC, in same day funds in accordance with procedures agreed to between
the Registrar and DTC.
(c) Payment of principal in respect of Bonds in definitive registered form issued pursuant to
Section 6(b) hereof shall be made against surrender at the office of the Registrar in the Borough
of Manhattan, the City and State of New York or at the office of any Paying Agent appointed by the
Province for such purpose pursuant to this Fiscal Agency Agreement and any Paying Agency Agreement.
Payment of interest due prior to or on the Maturity Date or on any Redemption Date will be made by
forwarding by post or otherwise delivering a cheque to the registered addresses of registered
holders of Bonds, or, at the option of the Province, otherwise transferring funds to the registered
holders of the Bonds. Such cheque shall be dated the due date for payment and made payable to the
order of the registered holder or, in the case of joint registered holders, to the order of all
such joint holders (failing instructions from them to the contrary) and shall be sent to the
address of that one of such joint holders whose name stands first in the register as one of such
joint holders. The Registrar shall mail or otherwise deliver such cheques to the names and
addresses of registered holders of Bonds
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sufficiently in advance of the relevant due date for payment that receipt of such cheques by
registered holders on or before the due date is reasonably assured.
(d) All monies paid to the Registrar under Section 7(a) of this Agreement shall be held by it
in a separate account from the moment when such money is received until the time of actual payment,
in trust for the registered holders of Bonds to be applied by the Registrar to payments due on the
Bonds at the time and in the manner provided for in this Agreement and the Bonds; provided that if
the Registrar shall fail to duly make any such payment due on the Bonds and, as a result of such
failure, the Province otherwise duly makes such payments to the registered holders of Bonds, the
Registrar shall thereupon hold such monies paid to it under Section 7(a) in trust for the Province.
Any money deposited with the Registrar for the payment of the principal or interest in respect of
any Bond remaining unclaimed for the lesser of six years, or the period prescribed by law, after
such principal or interest shall have become due and payable shall be repaid to the Province
without interest, and the registered holder of a Bond may thereafter look only to the Province for
any payment to which such holder may be entitled.
8. Mutilated, Destroyed, Stolen or Lost Bond Certificates. (a) If any Bond
certificate is mutilated, defaced, destroyed, stolen or lost, application for replacement shall be
made to the Registrar who shall promptly transmit such application to the Province. Such
application shall be accompanied by the mutilated or defaced certificate or proof, satisfactory to
the Province in its discretion, of the destruction, theft or loss of the certificate, and upon
receipt by the Province of an indemnity satisfactory to it, the Province shall execute a new
certificate of like tenor, and upon written instructions from the Province, the Registrar shall
thereupon cancel the mutilated or defaced certificate and adjust the Register to reflect the
cancellation, destruction, theft or loss of a certificate, as the case may be, and authenticate,
register and deliver such new certificate in exchange for the mutilated or defaced certificate or
in substitution for the destroyed, stolen or lost certificate. Such replacement certificate shall
be so dated that neither gain nor loss in interest will result from such exchange or substitution.
All expenses associated with procuring any indemnity and with the preparation, authentication and
delivery of a replacement certificate will be borne by the registered holder of the mutilated,
defaced, destroyed, stolen or lost Bond certificate.
(b) Whenever any Bond alleged to have been lost, stolen or destroyed for which a replacement
Bond has been issued is presented to the Registrar, any Paying Agent or any Additional Transfer
Agent for payment on the Maturity Date, the Redemption Date or for registration of transfer or
exchange, the Registrar, the Paying Agent or the Additional Transfer Agent, as the case may be,
shall immediately notify the Province in respect thereof and shall deal with such Bond only in
accordance with the Province’s instructions.
9. Maturity, Redemption and Purchases. (a) Unless previously redeemed for tax
reasons as provided in the terms and conditions of the Bonds, or repurchased by the Province, as
provided below, the principal amount of the Bonds is due and payable on June 15, 2018 (the
“Maturity Date”).
(b) In accordance with the terms and conditions of the Bonds, upon receipt of a notice to
redeem and a certificate of the Province, as set forth in the Bonds, not less than 30 days and no
more than 60 days prior to the Redemption Date, the Registrar shall cause to be
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published, in accordance with Section 19(b) hereof, on behalf of and at the expense of the
Province a notice of redemption stating: (i) the Redemption Date; (ii) the redemption price; and
(iii) if applicable, the place or places of surrender of the Bonds to be redeemed.
(c) The Province may, if not in default under the Bonds, at any time, purchase Bonds in the
open market, or by tender or by private contract at any price, in accordance with applicable law
and may cause the Registrar to cancel any Bonds so purchased.
(d) If the Province elects to cancel any Bonds purchased by it when Bonds have been issued in
the form of a Global Bond, it may require the Registrar to register such cancellation and to reduce
the outstanding aggregate principal amount of the Global Bonds in accordance with the regular
procedures of DTC in effect at such time.
10. Cancellation and Destruction. All Bonds which are paid on the Maturity Date or
the Redemption Date, or surrendered for registration of transfer or exchange for other certificates
or for replacement, shall be cancelled by the Registrar who shall register such cancellation. The
Registrar shall, as soon as practicable after the date of cancellation of Bonds under this Section
or Section 8(a) or the date that the register is adjusted to reflect the destruction, theft or loss
of a certificate pursuant to Section 8(a) hereof, furnish the Province with a certificate or
certificates stating the serial numbers and total number of Bonds that have been cancelled. The
Registrar shall destroy all cancelled Bonds in accordance with the instructions of the Province and
shall furnish to the Province, on a timely basis, certificates of destruction stating the serial
numbers, dollar value and total number of all Bonds destroyed hereunder.
11. (a) Limit on Liability. In acting under this Agreement, the Registrar, any
Paying Agent and any Additional Transfer Agent are acting solely as agents of the Province and do
not assume any obligation or relationship of agency or trust for or with any of the registered
holders of the Bonds, except that all funds held by the Registrar, any Paying Agent or Additional
Transfer Agent for payment of principal or interest shall be held in trust for the registered
holders of Bonds as provided in this Agreement.
(b) Rights and Liabilities of Registrar. The Registrar shall incur no liability for,
or in respect of, any action taken, omitted to be taken or suffered by it in reliance upon any
Bond, certificate, affidavit, instruction, notice, request, direction, order, statement or other
paper, document or communications reasonably believed by it to be genuine. Any order, certificate,
affidavit, instruction, notice, request, direction, statement or other communication from the
Province made or given by it and sent, delivered or directed to the Registrar under, pursuant to,
or as permitted by, any provision of this Agreement shall be sufficient for purposes of this
Agreement if such communication is in writing and signed by any authorized officer of the Province
or its attorney duly authorized in writing.
(c) Right of Agent to Own Bonds. The Registrar, each Paying Agent, and each
Additional Transfer Agent, and their officers, directors and employees, may become the holder of,
or acquire any interest in, any Bonds, with the same rights that it or they would have if it were
not the Registrar or a Paying Agent or an Additional Transfer Agent hereunder, or they were not
such officers, directors or employees, and may engage or be interested in any financial or other
transaction with the Province and may act on, or as depositary, trustee or agent for, any
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committee or body of registered holders of Bonds or other obligations of the Province as
freely as if it were not the Registrar or a Paying Agent or an Additional Transfer Agent hereunder
or they were not such officers, directors or employees.
(d) Force Majeure. Neither the Registrar, any Paying Agent or Additional Transfer
Agent nor the Province shall be liable for any loss or damage resulting from the failure to perform
its obligations under this Agreement or any term or condition herein if such failure is due to any
cause beyond the reasonable control of the party relying on such cause, for so long as such cause
may continue to cause such failure, including, without limitation, war, acts of terrorism, civil
commotion, military disturbances, acts of God, fire, nuclear or natural catastrophes, third party
labour disturbances, or any similar cause beyond the reasonable control of such party. Each party
shall use commercially reasonable efforts to give notice to the other party as soon as reasonably
possible of the occurrence of an event of force majeure as described under this provision and a
summary of the action to be taken by it as a result of such event; provided, however, that such
notice or failure to give such notice shall not in any way suspend or otherwise affect the
operation of this provision.
Notwithstanding the foregoing,
| (i) | Each party shall use commercially reasonable efforts to maintain contingency plans in place to either mitigate or negate the effects of any such event; and | ||
| (ii) | Each party shall at all times use commercially reasonable efforts to fully perform its obligations hereunder. |
(e) Waiver of Jury Trial. Each party waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any suit, action or
proceeding relating to this agreement. Each party (i) certifies that no representative, agent or
attorney of the other party has represented, expressly or otherwise, that such other party would
not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and
(ii) acknowledges that it and the other party have been induced to enter into this agreement, by,
among other things, the mutual waivers and certification in this agreement.
(f) Disclaimer of Liability for consequential or Punitive Damages. Neither the
Registrar, any Paying Agent or any Additional Transfer Agent nor the Province shall be liable for
any indirect, punitive, consequential or exemplary damages (including but not limited to loss of
profits) regardless of the cause of action.
12. Expenses and Indemnity. (a) In connection with the Registrar’s appointment and
duties as Registrar, the Province will pay the Registrar compensation in an amount separately
agreed upon by the Province and the Registrar. The Province will indemnify and hold harmless the
Registrar, each Paying Agent and each Additional Transfer Agent against all claims, actions,
demands, damages, costs, losses or liability which may be incurred by the Registrar, any Paying
Agent or any Additional Transfer Agent by reason of, or in connection with, the Registrar’s, any
Paying Agent’s or any Additional Transfer Agent’s appointment and duties as such, except as such
result from any negligent act or omission, bad faith or wilful
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misconduct of the Registrar, any Paying Agent or any Additional Transfer Agent or their
respective directors, officers, employees or agents. In addition, the Province will (i) indemnify
and hold harmless the DTC Custodian on the same basis as aforesaid in respect of its duties as
custodian for DTC but only to the extent the DTC Custodian is not otherwise entitled to be
indemnified or held harmless by DTC, and (ii) shall, pursuant to arrangements separately agreed
upon by the Province and the Registrar, transfer to the Registrar, upon presentation of
substantiating documentation satisfactory to the Province, amounts sufficient to reimburse the
Registrar for certain out-of-pocket expenses reasonably incurred by it and by any Paying Agent in
connection with their services. The obligation of the Province under this paragraph shall survive
payment of the Bonds, termination of this Agreement and resignation or removal of the Registrar.
(b) The Registrar shall not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers hereunder.
(c) The Registrar, each Paying Agent and each Additional Transfer Agent agrees to indemnify
and hold harmless the Province against all claims, actions, demands, damages, costs, losses and
liabilities arising out of or relating to any negligent act or omission, bad faith or willful
misconduct of the Registrar, such Paying Agent or such Additional Transfer Agent, as the case may
be, or its respective directors, officers, employees or agents. The obligations of the Registrar,
each Paying Agent and each Additional Transfer Agent under this paragraph shall survive payment of
the Bonds and resignation or removal of the Registrar, each Paying Agent and each Additional
Transfer Agent.
(d) Each indemnified party shall give prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought under this Agreement but failure
to so notify any indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity. An indemnifying party may participate at its own
expense in the defence of such action. If it so elects within a reasonable time after receipt of
such notice, an indemnifying party may assume the defence of such action with legal advisors chosen
by it and approved by the indemnified party defendant in such action, unless such indemnified party
reasonably objects to such assumption on the ground that there may be legal defences available to
it which are different from or in addition to those available to such indemnifying party, but an
indemnifying party may not settle any action commenced against an indemnified party without the
written consent of the indemnified party. In order to be entitled to an indemnity with respect to
a claim hereunder, an indemnified party will not, without the prior written consent of the
indemnifying party, settle or compromise or consent to the entry of any judgment with respect to
such pending or threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnifying party is an actual or
potential party to such claim or action). If an indemnifying party assumes the defence of any such
action, the indemnifying party shall not be liable for any fees or expenses of the legal advisors
of the indemnified party incurred thereafter in connection with such action, provided, however,
that an indemnified party shall be entitled to separate counsel at the expense of the indemnifying
party if there are separate defences available to the indemnified party or a conflict of interest
between the indemnifying party and the indemnified party. In no event shall the indemnifying party
be liable for the fees
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and expenses of more than one legal advisor for the indemnified party in connection with any one action or separate but
similar or related actions arising out of the same general allegations or circumstances.
(e) Whenever in the administration of this Agreement the Registrar shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
the Registrar may, in the absence of bad faith on its part, rely upon an order of the Province.
(f) The Registrar may consult with counsel of its selection and the advice of such counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(g) The Registrar shall not be liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement.
(h) The rights, privileges, protections, immunities and benefits given to the Registrar
hereunder, including, without limitation, its right to be indemnified, are extended to, and shall
be enforceable by, any of the other agents in each of their respective capacities hereunder.
13. (a) Successor Registrar. The Province agrees that there shall at all times be a
Registrar hereunder and that the registrar shall be a bank or trust company organized and doing
business under the laws of the United States of America or of the State of New York, in good
standing and having a place of business in the Borough of Manhattan, The City and State of New
York, and authorized under such laws to exercise corporate trust powers, provided, the Province may
choose to act at any time as its own fiscal agent, transfer agent, registrar and principal paying
agent.
The Registrar shall not transfer or assign this Agreement or any interest or obligation herein
without the Province’s prior written consent. Any corporation into which the Registrar hereunder
may be merged or converted, or any corporation with which the Registrar may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Registrar shall
sell or otherwise transfer all or substantially all of the corporate trust business of the
Registrar, provided that it shall be qualified as aforesaid, shall be the successor Registrar under
this Agreement without the execution or filing of any paper or any further act on the part of any
of the parties hereto, but subject to prior notice to and the prior written approval of the
Province.
(b) Resignation. The Registrar may at any time resign by giving written notice to the
Province of its resignation, specifying the date on which its resignation shall become effective
(which shall not be less than 60 days after the date on which such notice is given unless the
Province shall agree to a shorter period); provided that no such notice shall expire less than 30
days before or 30 days after the due date for any payment of principal or interest in respect of
the Bonds. The Province may remove the Registrar at any time by giving written notice to the
Registrar specifying the date on which such removal shall become effective.
11
Such resignation or
removal shall only take effect upon the appointment by the Province of a
successor Registrar and upon the acceptance of such appointment by such successor Registrar.
Any Paying Agent or Additional Transfer Agent may resign or may be removed at any time upon like
notice, and the Province in any such case may appoint in substitution therefor a new Paying Agent
or Paying Agents or Additional Transfer Agent or Additional Transfer Agents.
(c) Bankruptcy or Insolvency of Registrar. The appointment of the Registrar hereunder
shall forthwith terminate, whether or not notice of such termination shall have been given, if at
any time the Registrar becomes incapable of performing its duties hereunder, or is adjudged
bankrupt or insolvent, or files a voluntary assignment in bankruptcy or makes an assignment for the
benefit of its creditors or consents to the appointment of a liquidator or receiver of all or any
substantial part of its property or admits in writing its inability to pay or meet its debts as
they mature or suspends payment thereof, or if a resolution is passed or an order made for the
winding up or dissolution of the Registrar, or if a liquidator or receiver of the Registrar of all
or any substantial part of its property is appointed, or if any order of any court is entered
approving any petition filed by or against it under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer takes charge or control of the Registrar or its property
or affairs for the purposes of rehabilitation, conservation or liquidation.
(d) Appointment of Successor. Prior to the effective date of any such resignation or
removal of the Registrar, or if the Registrar shall become unable to act as such or shall cease to
be qualified as aforesaid, the Province shall appoint a successor Registrar, qualified as
aforesaid. Upon the appointment of a successor Registrar and its acceptance of such appointment,
the retiring Registrar shall, at the direction of the Province and upon payment of its compensation
and expenses then unpaid, deliver and pay over to its successor any and all securities, money and
any other properties then in its possession as Registrar and shall thereupon cease to act
hereunder.
(e) Payment of Certain Registrar’s Fees Upon Termination. If the Registrar resigns
pursuant to Section 13(b) of this Agreement or ceases to act as the Province’s fiscal agent in
respect of the Bonds pursuant to Section 13(c) of this Agreement, the Registrar shall only be
entitled to annual fees otherwise payable to it under this Agreement on a pro rata basis for that
period since the most recent anniversary of this Agreement during which the Registrar has acted as
fiscal agent hereunder. In the event that the Registrar ceases to act as the Province’s fiscal
agent in respect of the Bonds for any other reason, the Registrar shall be entitled to receive the
full amount of the annual fees payable to it in respect of the Bonds pursuant to Section 12(a) of
this Agreement.
14. Meetings of Holders of Bonds. (a) The Registrar shall convene a meeting of the
registered holders of the Bonds for any lawful purpose affecting their interests upon receipt of a
written request of the Province or a written request signed in one or more counterparts by the
registered holders of not less than 10% of the principal amount of the Bonds then outstanding and
upon being indemnified as to its reasonable satisfaction by the Province or the registered holders
of Bonds signing such request, as the case may be, against the costs which may be incurred in
connection with the calling and holding of such meeting. If the Registrar fails to give notice
convening such meeting within 30 days after receipt of such request and indemnity, the Province or
such registered holders of Bonds, as the case may be, may convene
12
such meeting. Every such meeting
shall be held in Fredericton, New Brunswick, Canada or such
other place as may be approved or determined by the Province with a simultaneous meeting to be
held in New York City provided there are means of telecommunication which permit the participants
to hear and speak to each other.
(b) At least 21 days’ notice of any meeting shall be given to the registered holders of the
Bonds in the manner provided pursuant to the terms and conditions of the Bonds and a copy thereof
shall be sent by prepaid courier to the Registrar unless the meeting has been called by the
Registrar, and to the Province, unless the meeting has been called by the Province. Such notice
shall state the time, place and purpose of the meeting and the general nature of the business to be
transacted at the meeting, and shall include a statement to the effect that, prior to 48 hours
before the time fixed for the meeting, (i) in the case of Bonds issued in the form of a Global
Bond, those persons recorded in the Register, or (ii) in the limited circumstances in which Bonds
in definitive registered form have been issued, those registered holders of Bonds who deposit their
Bonds with the Registrar or any other person authorized for such purpose by the Registrar or the
Province, shall be entitled to obtain voting certificates for appointing proxies (subject to such
procedures and requirements as the Province and the Registrar may prescribe), but it shall not be
necessary for any such notice to set out the terms of any resolution to be proposed at such meeting
or any other provisions.
(c) A registered holder of Bonds may appoint any person by instrument in writing as the
holder’s proxy in respect of a meeting of the registered holders of Bonds or any adjournment of
such meeting, and such proxy shall have all rights of the registered holder of Bonds in respect of
such meeting. All written notices to DTC of meetings shall contain a requirement that the
registered holders of Bonds must notify clearing system participants and, if known, beneficial
owners of Bonds of the meeting in accordance with procedures established from time to time by such
clearing systems. The registered holders of Bonds shall seek voting instructions on the matters to
be raised at such meeting from the clearing system participants or, if known, from the beneficial
owners of Bonds.
(d) A person, who need not be a registered holder of Bonds, will be nominated in writing by
the Registrar as chairperson of the meeting and if no person is so nominated or if the person so
nominated is not present within 15 minutes from the time fixed for the holding of the meeting, the
registered holders of the Bonds present in person or by proxy shall choose some person present to
be chairperson, and failing such choice, the Province may appoint a chairperson.
(e) At a meeting of registered holders of Bonds, a quorum shall consist of one or more
registered holders of Bonds present in person or by proxy who represent at least a majority in
principal amount of the Bonds at the time outstanding. If a quorum of the registered holders of
Bonds shall not be present within one-half hour after the time fixed for holding any meeting, the
meeting, if convened by or at the request of registered holders of Bonds, shall be dissolved, but
if otherwise convened the meeting shall stand adjourned without notice to the same day in the next
week (unless such day is not a business day in the place where the meeting is to take place in
which case it shall stand adjourned until the next such business day following thereafter) at the
same time and place unless the chairperson appoints some other place in Fredericton, New Brunswick,
or some other day or time of which not less than seven (7) days’
13
notice shall be given in the
manner provided above. At the adjourned meeting one or more
registered holders of Bonds present in person or by proxy shall constitute a quorum and may
transact the business for which the meeting was originally convened notwithstanding that they may
not represent at least a majority in principal amount of the Bonds then outstanding.
(f) The chairperson of any meeting at which a quorum of the registered holders of Bonds is
present may, with the consent of the registered holder(s) of a majority of principal amount of the
Bonds represented thereat, adjourn any such meeting and no notice of such adjournment need be given
except such notice, if any, as the meeting may prescribe.
(g) Every motion or question submitted to a meeting shall be decided by Extraordinary
Resolution (as defined below) and in the first place by the votes given on a show of hands. At any
such meeting, unless a poll is duly demanded as herein provided, a declaration by the chairperson
that a resolution has been carried or carried unanimously or by a particular majority or lost or
not carried by a particular majority shall be conclusive of the fact. On any question submitted to
a meeting when ordered by the chairperson or demanded by a show of hands by one or more registered
holders of Bonds acting in person or by proxy and holding at least 2% in principal amount of the
Bonds then outstanding, a poll shall be taken in such manner as the chairperson shall direct.
(h) On a poll, each registered holder of Bonds present in person or represented by a proxy
duly appointed by an instrument in writing shall be entitled to one vote in respect of each
US$5,000 principal amount of Bonds of which the person shall then be the registered holder
(calculated on a pro rata basis for registered holders who hold Bonds in integral multiples of
US$1,000 in excess of US$5,000). A proxy need not be a registered holder of Bonds. In the case of
Bonds held jointly, any one of the joint registered holders present in person or by proxy may vote
in the absence of the other or others; but in case more than one of them be present in person or by
proxy, only one of them may vote in respect of each US$5,000 principal amount of Bonds (or such
greater amount of Bonds that is not an integral multiple of US$5,000) of which they are joint
registered holders.
(i) The Province and the Registrar, by their authorized representatives, officers and
directors, and the financial and legal advisors of the Province and the Registrar may attend any
meeting of the registered holders of Bonds, but shall have no vote as such.
(j) Except as set forth in Section 18 hereof, the registered holders of the Bonds may consent
by Extraordinary Resolution (as defined below) to any modification or amendment proposed by the
Province to this Agreement and the Bonds. An Extraordinary Resolution duly passed at any such
meeting shall be binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to this Agreement or the Bonds shall, without the consent of the
registered holder of each such Bond affected thereby; (a) change the Maturity Date of any Bond or
change any Interest Payment Date; (b) reduce the principal amount thereof or the rate of interest
payable thereon; (c) change the coin or currency of payment of any Bond; (d) impair the right to
institute suit for the enforcement of any such payment on or with respect to such Bond; or (e)
reduce the percentage of principal amount of Bonds necessary for the taking of any action,
including modification or amendment of this
14
Agreement or the terms and conditions of the Bonds, or
reduce the quorum required at any meeting of registered holders of Bonds.
The term “Extraordinary Resolution” is defined as a resolution passed at a meeting of
registered holders of Bonds held in accordance with the provisions of this Agreement and the Bonds
by the affirmative vote of the registered holders of not less than 662/3% of the principal amount of
the Bonds represented at the meeting in person or by proxy and who voted on the resolution or as an
instrument in writing signed in one or more counterparts by the registered holders of not less than
662/3% in principal amount of the outstanding Bonds.
(k) Minutes of all resolutions and proceedings at every meeting of registered holders of Bonds
held in accordance with the provisions of this Agreement shall be made and entered in books to be
from time to time provided for that purpose by the Registrar at the expense of the Province and any
such minutes, if signed by the chairperson of the meeting at which such resolutions were passed or
proceedings taken, or by the chairperson of the next succeeding meeting of the registered holders
of Bonds, shall be prima facie evidence of the matters therein stated and, until the contrary is
proved, every such meeting, in respect of the proceedings of which minutes shall have been made,
shall be deemed to have been duly held and convened, and all resolutions passed and proceedings
taken thereat to have been duly passed and taken.
(l) Every Extraordinary Resolution passed in accordance with the provisions of this Agreement
at a meeting of registered holders of Bonds shall be binding upon all the registered holders of
Bonds, whether present at or absent from such meeting, and every instrument in writing signed by
registered holders of Bonds in accordance with paragraph (j) of this Section 14 shall be binding
upon all the registered holders of Bonds (whether or not a signatory). Subject to the provisions
for its indemnity herein contained, the Registrar shall be bound to give effect accordingly to
every such Extraordinary Resolution.
(m) The Registrar, or the Province with the approval of the Registrar, may from time to time
make, and from time to time vary, such regulations as it shall from time to time deem fit:
| (i) | for the deposit of instruments appointing proxies at such place as the Registrar, the Province or the registered holders of Bonds convening a meeting, as the case may be, may in the notice convening such meeting direct; and | ||
| (ii) | for the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and enabling particulars of such instruments appointing proxies to be mailed or sent by any other means of recorded communication before the meeting to the Province or to the Registrar at the place where the same is to be held and for the voting of proxies so deposited as though the instruments themselves were produced at the meeting. |
15
Any regulation so made shall be binding and effective and votes given in accordance therewith
shall be valid and shall be counted. Save as such regulations may provide, the only persons who
shall be entitled to vote at a meeting of registered holders of Bonds shall be the registered
holders thereof or their duly appointed proxies.
15. Further Issues. The Province may from time to time, without notice to or the
consent of the registered holders of the Bonds, create and issue further bonds ranking pari passu
with the Bonds in all respects (or in all respects except for the payment of interest accruing
prior to the issue date of such further bonds or except for the first payment of interest following
the issue date of such further bonds) and so that such further bonds shall be consolidated and form
a single series with the Bonds and shall have the same terms as to status, redemption or otherwise
as the Bonds. Any further bonds shall be issued with the benefit of an agreement supplemental to
this Agreement.
16. Reports. The Registrar shall furnish to the Province such reports as may be
required by the Province relative to the Registrar’s performance under this Agreement. The
Province may, whenever it deems it necessary, inspect books and records maintained by the Registrar
pursuant to this Agreement, if any.
17. Forwarding of Notice. If the Registrar shall receive any notice or demand
addressed to the Province pursuant to the provisions of the Bonds, the Registrar shall promptly
forward such notice or demand to the Province.
18. Amendments. This Agreement and the Bonds may be amended or supplemented by the
parties hereto, without notice to or the consent of the registered holder of any Bond, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or in the Bonds, or effecting the issue of further bonds as described under
Section 15 of this Agreement, or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, shall not adversely affect the
interests of the beneficial owners of the Bonds.
19. Notices. (a) Any communications from the Province to the Registrar with respect
to this Agreement shall be in writing and sent to The Bank of New York Mellon, 000 Xxxxxxx Xxxxxx,
Xxxxx 0X, Xxx Xxxx, XX 00000, XXX, Attention: International Corporate Trust, or sent by facsimile
to (000) 000-0000 or (000) 000-0000 and any communications from the Registrar to the Province with
respect to this Agreement shall be addressed to the Department of Finance, Treasury Division, 000
Xxxx Xxxxxx, Xxxx 000, Xxxxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxx, X0X 0X0, Attention: Assistant Deputy
Minister Treasury, Fax No. (000) 000-0000 (or such other address as shall be specified in writing
by the Registrar or by the Province, as the case may be) and shall be delivered in person or sent
by first class prepaid courier or by facsimile transmission subject, in the case of facsimile
transmission, to confirmation by telephone to the foregoing addresses. Such notice shall take
effect in the case of delivery in person, at the time of delivery, in the case of delivery by first
class prepaid courier seven (7) business days after dispatch and in the case of delivery by
facsimile transmission, at the time of confirmation by telephone.
(b) All notices to the registered holders of Bonds will be published at the expense of the
issuer in English in the Financial Times in London, England, The Wall Street
16
Journal in New York,
U.S.A., and The Globe and Mail in Toronto, Canada. If at any time publication in any such
newspaper is not practicable, notices will be valid if published in an English language newspaper
with general circulation in the respective market regions as the Province, with the approval of the
Registrar, shall determine. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different
dates, on the first date on which publication is made. Written notice will also be given to
DTC, provided at the time of such notice the Bonds are represented by the Global Bonds.
20. Governing Law and Counterparts. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the Province of New Brunswick and the laws of Canada
applicable in New Brunswick. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
21. Headings. The headings for the sections of this Agreement are for convenience
only and are not part of this Agreement.
22. Enurement. Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
17
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency Agreement as of the
date first above written.
PROVINCE OF NEW BRUNSWICK |
||||
| By: | /s/ Xxxxxxx Xxx-Xxxxx | |||
| Name: | Xxxxxxx Xxx-Xxxxx | |||
| Title: | Assistant Deputy Minister Treasury Division Department of Finance | |||
| THE BANK OF NEW YORK MELLON, as Fiscal Agent, Transfer Agent, Registrar and Principal Paying Agent |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxxx | |||
| Title: | Vice-President | |||
| THE BANK OF NEW YORK MELLON, as London Paying Agent |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxx | |||
| Title: | Vice-President | |||
EXHIBIT 1
[FORM OF GLOBAL BOND]
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) (the “Depository”), to the
Province (as defined below) or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of the Depository (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of the Depository), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
REGISTERED NO. [•]
|
CUSIP: | 000000XX0 | ||
SERIES: HD
|
ISIN: | XX000000XX00 |
XXXXXXXX XX XXX XXXXXXXXX
2.750% BONDS DUE JUNE 15, 2018
2.750% BONDS DUE JUNE 15, 2018
The Province of New Brunswick (the “Province”), for value received, hereby promises to pay to
Cede & Co., or its registered assigns, the principal sum of [•] UNITED STATES DOLLARS (US$[•]) (the
“Principal Amount”) in lawful money of the United States of America on June 15, 2018 (the “Maturity
Date”) (or on such earlier date as the Principal Amount may become payable hereunder), upon
presentation and surrender of this Bond and to pay interest thereon together with Additional
Amounts (as defined below), if any at the rate of 2.750% per annum from June 16, 2011 until the
principal hereof is paid. Interest for the period from, and including, June 16, 2011 to, but
excluding, December 15, 2011, will be payable on December 15, 2011 (the “Initial Interest Payment
Date”). Thereafter, interest on this Bond will be payable in two equal semi-annual installments in
arrears on the 15th day of June and the 15th day of December in each year (each such date, and the
Initial Interest Payment Date, an “Interest Payment Date”), until and including the Maturity Date
or earlier Redemption Date, in each case in accordance with the terms of this Global Bond.
This is a fully registered Global Bond (the “Global Bond”) in respect of a duly authorized
issue of debt securities of the Province designated as its 2.750% Bonds, Series HD, due June 15,
2018 (the “Bonds”). This Global Bond is limited in aggregate principal amount to US$[•]. This
Global Bond and all the rights of the registered holder hereof are expressly subject to a fiscal
agency agreement dated as of June 16, 2011 (the “Fiscal Agency Agreement”) between the Province and
The Bank of New York Mellon, as fiscal agent, transfer agent, registrar and principal paying agent
(the “Registrar”, which term includes any successor as fiscal agent, transfer agent, registrar and
principal paying agent) to which Fiscal Agency Agreement reference is hereby made for a statement
of the respective rights, duties and immunities of the Province, the Registrar and holders of the
Bonds and the terms upon which the Bonds are, and are to be, authenticated and delivered. This
Global Bond and the Fiscal Agency Agreement together constitute a contract, all the terms and
conditions of which the registered holder by acceptance hereof assents to and is deemed to have
notice of. Capitalized terms not defined
EX-1
herein shall have the meaning assigned to them in the Fiscal Agency Agreement. Further
references herein to principal or interest shall be deemed to also refer to any Additional Amounts
which may be payable hereunder.
This Global Bond is issued under the authority of Orders of the Lieutenant- Governor in
Council of New Brunswick, the Provincial Loans Act (New Brunswick) and The Loan Xxx 0000 (New
Brunswick). This Global Bond shall for all purposes be governed by, and construed in accordance
with, the laws of the Province of New Brunswick and the laws of Canada applicable in New Brunswick.
Payment of the principal of and interest on this Global Bond is a charge on and payable out of
the Consolidated Fund of New Brunswick. This Global Bond is a direct unsecured obligation of the
Province and as among the other Bonds, ranks pari passu and is payable without any preference or
priority. This Global Bond ranks equally with all of the Province’s other unsecured and
unsubordinated indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest Payment Date to which
interest has been paid, or, if no interest has been paid or duly provided for, from June 16, 2011,
until the principal hereof has been paid or duly made available for payment. Any overdue principal
or interest on this Global Bond shall bear interest at the rate of 2.750% per annum (before as well
as after judgment) until paid, or if earlier, when the full amount of the monies payable has been
received by the Registrar and notice to that effect has been given in accordance with the
provisions set forth herein. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on June 1 or December 1 (whether
or not a Business Day, as defined below), as the case may be, next preceding such Interest Payment
Date (each such day a “Regular Record Date”). Any such interest not so punctually paid or duly
provided for will be paid to the person in whose name this Global Bond (or one or more predecessor
Global Bonds) is registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed by the Registrar, notice whereof shall be given to the
registered holder hereof not less than ten (10) days prior to such special record date, or be paid
at any time in any other lawful manner. Interest payments on this Global Bond will include
interest accrued to but excluding the Interest Payment Dates. Interest will be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
For the purposes only of disclosure required by the Interest Act (Canada) and without
affecting the interest payable to the registered holder of this Global Bond, the yearly rate of
interest which is equivalent to the rate of interest for any period of less than one year is the
rate of interest for such period multiplied by a fraction, the numerator of which is the actual
number of days in the calendar year in respect of which such calculation is made and the
denominator of which is the actual number of days used in the calculation.
In the event that the Maturity Date, any Interest Payment Date or any Redemption Date (as
defined in the Fiscal Agency Agreement) with respect to this Global Bond shall be a day that is not
a Business Day, the registered holder hereof shall not be entitled to payment until the next
following Business Day, and no further interest shall be paid in respect of the delay in
EX-2
such payment, unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately preceding Business Day as
if made on the date such payment was due. For purposes hereof, “Business Day” means a day other
than a Saturday or Sunday on which banking institutions in the City of New York and the City of
Toronto, Ontario are not authorized or obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this Global Bond, payment of
the principal of such Bonds will be made upon presentation and surrender of such Bonds at the
office of the Registrar maintained for that purpose in the Borough of Manhattan, The City and State
of New York, or at the office of any Paying Agent appointed by the Province for such purpose
pursuant to the Fiscal Agency Agreement. Payment of interest due prior to or on the Maturity Date
will be made by forwarding by post or otherwise delivering a cheque, to the registered addresses of
registered holders of Bonds, or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or any Interest Payment
Date is a Business Day but is a day on which any Paying Agent is closed at the applicable place of
payment, the registered holder will not be entitled to payment at such location until the next
succeeding day other than a Saturday or Sunday on which banking institutions in such place of
payment are not authorized or obligated by law or executive order to be closed and no further
interest shall accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such coin or currency of
the United States as, at the time of payment, is legal tender for payment of public and private
debts.
This Global Bond is not subject to any sinking fund and is not redeemable at the option of the
Province, unless certain events occur involving Canadian taxation as set forth below, and is not
repayable at the option of the holder prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global Bond will be made
without withholding of or deduction for, or on account of, any present or future taxes, duties,
assessments or charges of whatsoever nature imposed or levied by or on behalf of the Government of
Canada, or any province or political subdivision thereof, or any authority thereof or agency
therein having power to tax, unless such taxes, duties, assessments or charges are required by law
or by the administration or interpretation thereof to be withheld or deducted. In that event, the
Province (subject to its right of redemption described herein below) will pay to the registered
holder of this Global Bond such additional amounts (the “Additional Amounts”) as will result (after
withholding or deduction of the said taxes, duties, assessments or charges) in the payment to the
holders of Bonds of the amounts which would otherwise have been payable in respect of the Bonds in
the absence of such taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
| (a) | a beneficial owner of which is subject to such taxes, duties, assessments or charges in respect of such Bond by reason of such owner being connected with Canada otherwise than merely by the ownership as a non-resident of Canada of such Bond, but only to the extent of such owner’s interest(s) therein; |
EX-3
| (b) | presented for payment more than 15 days after the Relevant Date, except to the extent that the holder thereof would have been entitled to such Additional Amounts on the last day of such period of 15 days. For this purpose, the “Relevant Date” in relation to any Bond means whichever is the later of: |
| (i) | the date on which the payment in respect of such Bond becomes due and payable; or | ||
| (ii) | if the full amount of the monies payable on such date in respect of such Bond has not been received by the Registrar on or prior to such date, the date on which notice is duly given to the holders of Bonds that such monies have been so received. |
| (c) | where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the Directive or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or | ||
| (d) | by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting (where presentation is required) the relevant Bond to another paying agent in a Member State of the European Union. |
Unless previously redeemed for tax reasons, as provided below, or repurchased by the Province,
the Principal Amount of this Global Bond is due and payable on June 15, 2018.
The Bonds may be redeemed at the option of the Province in whole, but not in part, at any
time, on giving not less than 30 days’ and no more than 60 days’ notice to registered holders of
Bonds in accordance with Section 19 of the Fiscal Agency Agreement (which notice shall be
irrevocable), at 100% of the principal amount thereof, together with interest accrued thereon to
the Redemption Date, if (a) the Province has or will become obliged to pay Additional Amounts as
provided herein, as a result of any change in, or amendment to, the laws or regulations of Canada
or any province or political subdivision thereof, or any authority thereof or agency therein having
power to tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after June 9, 2011, and (b) such
obligation cannot be avoided by the Province taking reasonable measures available to it, provided
that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on
which the Province would be obliged to pay such Additional Amounts were a payment in respect of the
Bonds then due. Prior to the publication of any notice of redemption pursuant to this paragraph,
the Province shall deliver to the Registrar a certificate signed by an officer of the Province
stating that the Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to redeem have
occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar will maintain at
its office in the Borough of Manhattan, The City and State of New York, a register (herein, the
“Register”) for the registration of Bonds and the registration of transfers and exchanges of Bonds.
Subject to the limitations, terms and conditions set forth herein and in the
EX-4
Fiscal Agency Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar shall issue and
register in the name of the transferee, in exchange therefor, a new Global Bond (or other global
security in the case of a transfer to a successor depository) having identical terms and conditions
and having a like aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal Agency Agreement,
this Global Bond is exchangeable at the office of the Registrar for Bonds in definitive registered
form without coupons in authorized denominations of US$5,000 and integral multiples of US$1,000 for
amounts in excess of US$5,000 in an equal aggregate principal amount and having identical terms and
conditions as this Global Bond, except to the extent that such terms and conditions specifically
relate to this Global Bond as a global security. On or after such exchange, the Registrar, to the
extent reasonably practicable in the circumstances, shall make all payments to be made in respect
of such Bonds in definitive registered form to the registered holders thereof regardless of whether
such exchange occurred after the record date for such payment. If this Global Bond is surrendered
for transfer, it shall be accompanied by a written instrument of transfer in form satisfactory to
the Registrar and executed by the registered holder in person or by the holder’s attorney duly
authorized in writing. No service charge will be imposed for any such transfers and exchanges in
the normal course of business, but the Province may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge in connection therewith.
The Registrar shall not be required to register any transfer or exchange of this Global Bond
during the period from any Regular Record Date to the corresponding Interest Payment Date or during
the period from the Redemption Record Date (as defined in the Fiscal Agency Agreement) to the
Redemption Date. Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other similar consequences
under the laws or regulations of any jurisdiction in effect at the time of the exchange. No
provision of this Global Bond or of the Fiscal Agency Agreement shall alter or impair the
obligation of the Province, which is absolute and unconditional, to pay the principal of and
interest on this Global Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in whose name this
Global Bond is registered as the absolute owner hereof for all purposes, whether or not this Global
Bond is overdue, and none of the Province, the Registrar or any Paying Agent shall be affected by
notice to the contrary. All payments to or on the order of the registered holder of this Global
Bond are valid and effectual to discharge the liability of the Province and the Registrar and any
Paying Agent hereon to the extent of the sum or sums paid.
The Province’s obligation to pay an amount of interest on the Bonds will cease if a claim for
the payment of such interest is not made within the lesser of six years, or the period prescribed
by law, after the date on which such interest becomes due and payable. The Province’s obligation
to pay the principal amount of the Bonds will cease if the Bonds are not presented for payment
within the lesser of six years, or the period prescribed by law, after the date on which such
principal becomes due and payable.
EX-5
The Province and the Registrar may, at any time or from time to time, without notice to or the
consent of the registered holder of any Bond, enter into one or more agreements supplemental to the
Fiscal Agency Agreement to create and issue further bonds ranking pari passu with the Bonds in all
respects (or in all respects except for the payment of interest accruing prior to the issue date of
such further bonds or except for the first payment of interest following the issue date of such
further bonds) and so that such further bonds shall be consolidated and form a single series with
the Bonds and shall have the same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on the one hand, and
the Registrar, on the other hand, without notice to or the consent of the registered holder of any
Bond, for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective
provisions contained therein or herein, or effecting the issue of further bonds as described above
or in any other manner which the Province may deem necessary or desirable and which, in the
reasonable opinion of the Province, on the one hand, and the Registrar, on the other hand, will not
adversely affect the interests of the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of registered holders
of Bonds to consent by Extraordinary Resolution (as defined below) to any modification or amendment
proposed by the Province to the Fiscal Agency Agreement (except as provided in the two immediately
preceding paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be binding on all registered
holders of Bonds, whether present or not; however, no such modification or amendment to the Fiscal
Agency Agreement or to the terms and conditions of the Bonds may, without the consent of the
registered holder of each such Bond affected thereby: (a) change the Maturity Date of any such
Bond or change any Interest Payment Date; (b) reduce the principal amount of any such Bond or the
rate of interest payable thereon; (c) change the currency of payment of any such Bond; (d) impair
the right to institute suit for the enforcement of any payment on or with respect to such Bond; or
(e) reduce the percentage of the principal amount of Bonds necessary for the taking of any action,
including modification or amendment of the Fiscal Agency Agreement or the terms and conditions of
the Bonds, or reduce the quorum required at any meeting of registered holders of Bonds.
The term “Extraordinary Resolution” is defined in the Fiscal Agency Agreement as a resolution
passed at a meeting of registered holders of Bonds by the affirmative vote of the registered
holders of not less than 662/3% of the principal amount of Bonds represented at the meeting in person
or by proxy and who voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 662/3% in principal amount of the outstanding Bonds. The quorum at any such
meeting for passing an Extraordinary Resolution is one or more registered holders of Bonds present
in person or by proxy who represent at least a majority in principal amount of the Bonds at the
time outstanding, or at any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal amount of the
Bonds so held or represented.
EX-6
All notices to the registered holders of Bonds will be published in English in the Financial
Times in London, England, The Wall Street Journal in New York, U.S.A., and The Globe and Mail in
Xxxxxxx, Xxxxxxx. If at any time publication in any such newspaper is not practicable, notices
will be valid if published in an English language newspaper with general circulation in the
respective market regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such publication or, if published
more than once or on different dates, on the first date on which publication is made.
For so long as the Bonds are listed on the London Stock Exchange and if the rules of such
stock exchange on which the Bonds are listed or the rules of the Financial Services Authority (UK)
so require, the Province agrees to appoint and maintain a paying agent in London.
Unless the certificate of authentication hereon has been executed by the Registrar by manual
signature, this Global Bond shall not be entitled to any benefit under the Fiscal Agency Agreement
or be valid or obligatory for any purpose.
EX-7
IN WITNESS WHEREOF, the Province of New Brunswick, pursuant to due authorization of law, has
caused this Global Bond to be duly executed by an authorized representative and the Seal of the
Province of New Brunswick to be imprinted hereon.
| DATED: June 16, 0000 | XXXXXXXX XX XXX XXXXXXXXX |
|||
| By: | ||||
| Authorized Signing Officer | ||||
SEAL OF THE PROVINCE OF NEW BRUNSWICK |
||||
REGISTRAR’S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the within-mentioned
Fiscal Agency Agreement.
| THE BANK OF NEW YORK MELLON as Registrar |
||||
| By: | ||||
| Authorized Signatory | ||||
