EXHIBIT 99.11
That required by items (11), (12), (13) and (14) and a part of that
required by item (3) of Schedule B of the Securities Act of 1933 follows:
I All of the debt of the Province of British Columbia is unsecured, hence
there is no provision for substitution of security with respect
thereto.
II Fiscal Agency Agreement dated as of April 29, 2003, including the form
of Bonds.
III Underwriting Agreement dated April 22, 2003, including the names and
addresses of the Underwriters.
IV Opinion of the Assistant Deputy Attorney General, Legal Services
Branch, Ministry of Attorney General, in respect of the legality of the
Bonds.
V Schedule of Expenses.
II FISCAL AGENCY AGREEMENT
CONFORMED COPY
PROVINCE OF BRITISH COLUMBIA
U.S. $500,000,000
4.30% BONDS, SERIES BCUSG-3, DUE MAY 30, 2013
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FISCAL AGENCY AGREEMENT
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DATED AS OF APRIL 29, 2003
PROVINCE OF BRITISH COLUMBIA
FISCAL AGENCY AGREEMENT dated as of April 29, 2003, between the
Province of British Columbia (the "Province") and The Bank of New York, a
corporation organized and existing under the laws of the State of New York (the
"Fiscal Agent", which term includes any successor Fiscal Agent appointed in
accordance with this Agreement).
1. UNDERWRITING AGREEMENT. The Province has entered into an
underwriting agreement dated as of April 22, 2003, with Xxxxxx Brothers Inc. and
CIBC World Markets plc, as representatives of the several underwriters named
therein, providing for the issue and sale by the Province of U.S.$500,000,000
principal amount of its 4.30% Bonds, Series BCUSG-3, Due May 30, 2013 (the
"Bonds").
2. APPOINTMENT OF FISCAL AGENT AND PAYING AGENTS. (a) The
Province hereby appoints the Fiscal Agent as fiscal agent, registrar,
transfer agent and principal paying agent of the Province for the Bonds, upon
the terms and subject to the conditions set forth in this Agreement, and the
Fiscal Agent accepts such appointment.
(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 (which term shall mean the same herein 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. Any such Paying Agent or Paying
Agents appointed by the Province will have the benefit of and be subject to the
provisions of this Agreement to the same extent as the Fiscal Agent in its
capacity as principal paying agent. The Province may at any time terminate the
appointment of any Paying Agent; PROVIDED that as long as the Bonds are listed
on the Luxembourg Stock Exchange and, if the rules of the Luxembourg Stock
Exchange so require, the Province will maintain a transfer agent and Paying
Agent in Luxembourg. The Province will keep the Fiscal Agent informed as to the
name, address, and telephone and facsimile numbers of each Paying Agent
appointed by it and will notify the Fiscal Agent of the resignation or removal
of any Paying Agent. The Fiscal Agent 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).
3. FORM. (a) The Bonds shall initially be issued in the form of a
fully registered global certificate without coupons (such registered global
certificate 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 initially be registered in the name of
Cede & Co., as nominee of The Depository Trust Company ("DTC") and held by the
Fiscal Agent as custodian for DTC. As long as DTC or its nominee is the
registered holder of the Global Bonds, DTC or its nominee, as the case may be,
will be considered the sole owner and holder of the Bonds for all purposes under
this Agreement and the Global Bonds. Neither the Province nor the Fiscal Agent
will have any responsibility or liability for any aspect of the
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records relating to or payments made by DTC on account of beneficial ownership
interests in the Global Bonds or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Except as provided in
Section 6, 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 signed and
countersigned on behalf of the Province, manually or in facsimile, by its
authorized officials, and may be sealed with the manual or facsimile seal of its
Ministry of Finance. In the event that any official of the Province who shall
have signed or countersigned or whose facsimile signature or countersignature
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 or countersigned such
Bonds had not ceased to be such official of the Province.
4. AUTHENTICATION. The Fiscal Agent shall, upon receipt of Bonds duly
executed 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. The total amount of the
Bonds to be issued and outstanding at any time, whether in the form of Global
Bonds or Bonds in definitive registered form issued in exchange for the Global
Bonds, shall not exceed U.S. $500,000,000 in aggregate principal amount (or such
lesser amount as may be determined in accordance with Section 9(d)), plus the
aggregate principal amount of any additional bonds issued by the Province
pursuant to any supplement hereto in accordance with Section 15.
5. REGISTRATION, TRANSFERS AND EXCHANGES. (a) The Fiscal Agent, as
agent of the Province for such purpose, shall at all times keep at its office in
the Borough of Manhattan, The City of New York or at such other office
reasonably satisfactory to the Province (the "Fiscal Agent's Office") a register
(the "Register") for the initial 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 particulars of the Bonds held by them.
Subject to Section 6, upon surrender for registration of transfer of any Bond at
the Fiscal Agent's Office, the Fiscal Agent shall authenticate, register and
deliver, in the name of the transferee or transferees, a new Bond or Bonds for a
like aggregate principal amount in accordance with the provisions of the Bonds.
Subject to Section 6, upon surrender of any Bond at the Fiscal Agent's Office
for exchange the Fiscal Agent shall authenticate, register and deliver, in
exchange for such Bond, a new Bond or Bonds of the appropriate authorized
denomination or denominations and for a like aggregate principal amount in
accordance with the provisions of the Bonds. The Province and the Fiscal Agent
shall not be required to make any exchange of Bonds if, as a result thereof, the
Province
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may 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 Fiscal Agent upon
registration of transfer or in exchange for Bonds of other denominations shall
be dated so 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 Fiscal Agent, which form shall be in
accordance with the prevailing United States transfer regulations and practices
and duly executed by the registered holder or its duly authorized attorney.
(d) The Fiscal Agent shall not impose any service charge on the
registered holder for any such registration of transfer or exchange of Bonds
other than reasonable fees for the replacement of lost, stolen, mutilated,
defaced or destroyed Bond certificates; 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. In addition, owners
of beneficial interests in the Bonds may incur fees payable in respect of the
maintenance and operation of the book-entry accounts in which such interests are
held with the clearing systems.
(e) The Province and the Fiscal Agent shall deem and treat the person
in whose name a Bond is registered as the absolute owner of such Bond for all
purposes whatsoever, whether or not such Bond is overdue, and neither the
Province or the Fiscal Agent shall be affected by notice to the contrary. All
payments to or on the order of the registered holder of any Bond are valid and
effectual to discharge the liability of the Province or the Fiscal Agent on such
Bond to the extent of the sum or sums paid.
(f) The Fiscal Agent shall not be required to register any transfer or
exchange of Bonds during the period from any Record Date to the next following
Interest Payment Date and for the purposes of any interest payment made on an
Interest Payment Date in accordance with Section 7(b) or (c), such payment shall
be made to those persons in whose names the Bonds are registered at the close of
business on the Record Date. In this Agreement, the terms "Interest Payment
Date" and "Record Date" will bear the meanings ascribed to them in the Bonds.
6. SPECIAL PROVISIONS RELATING TO GLOBAL BONDS. (a) Unless a Global
Bond is presented by an authorized representative of DTC to the Province or the
Fiscal Agent for registration of transfer, exchange or payment, and any
replacement Global Bond issued is registered in the name of Cede & Co. or such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by such
authorized representative), any transfer, pledge or other use of the Global Bond
for value or otherwise shall be wrongful since the registered holder thereof,
Cede & Co., has an interest therein.
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(b) Except as provided in this subsection (b), 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 depositary 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 90 days after the Province receives such
notice or becomes aware of such ineligibility, the Province shall execute Bonds
in definitive registered form, and the Fiscal Agent, upon receipt thereof, shall
authenticate and deliver such Bonds in definitive registered form without
coupons, in denominations of U.S. $1,000 and integral multiples thereof, 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 Bonds in definitive registered form without coupons,
in denominations of U.S. $1,000 and integral multiples thereof, in an aggregate
principal amount equal to the aggregate principal amount of the Global Bonds as
of the exchange date, and the Fiscal Agent, upon receipt thereof, shall
authenticate such Bonds in definitive registered form and deliver them in
accordance with this section.
Upon the exchange of the Global Bonds for Bonds in definitive
registered form, the Fiscal Agent 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 Fiscal Agent or
the Province. The Fiscal Agent 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 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 the Global Bonds) as the Global
Bonds surrendered upon such exchange.
(c) The Global Bonds may be transferred, in whole but not in part,
only to another nominee of DTC or to a successor of DTC or its nominee.
7. PAYMENT. (a) The Province will pay to the Fiscal Agent, in
immediately available funds, in United States dollars, to an account to be
specified by the Fiscal Agent, 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), 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
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authorizes and directs the Fiscal Agent, 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" means a day other than a Saturday or Sunday on which
banking institutions in New York, New York, London, England and Toronto, Ontario
are not authorized or obligated by law or regulation to close. If the Bonds have
been issued in definitive form and a date for payment is a Business Day, but is
a day on which any Paying Agent is closed at the applicable place of payment, a
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
regulation to be closed and no further interest shall be paid in respect of the
delay in such payment.
(b) Payment of principal and interest on the Global Bonds shall be
made by the Fiscal Agent to Cede & Co., as nominee of DTC, in accordance with
the regular procedures established from time to time by DTC and the Fiscal
Agent.
(c) Payment of principal in respect of Bonds in definitive registered
form issued pursuant to Section 6 (b) shall be made at the Fiscal Agent's
Office. Payment of interest due on an Interest Payment 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 if requested
by a registered holder, otherwise transferring funds to such registered holder.
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. In the
case of payments of interest due on an Interest Payment Date, the Fiscal Agent
shall mail or otherwise deliver such cheques to the names and addresses of
registered holders of Bonds sufficiently in advance of the relevant due date for
payment that receipt of such cheques by registered holders on or before the
relevant due date is reasonably assured. In the case of payments of interest due
on a Redemption Date which is not an Interest Payment Date, the interest
payments in respect of the Bonds shall be made at the Fiscal Agent's Office,
together with the principal thereof.
(d) All monies paid to the Fiscal Agent under Section 7 (a) shall be
held by it in a separate account from the moment when such monies are received
until the time of actual payment, in trust for the registered holders of Bonds,
to be applied by the Fiscal Agent to payments due on the Bonds at the time and
in the manner provided for in this Agreement and the Bonds. Any money deposited
with the Fiscal Agent for the payment of the principal or interest in respect of
any Bond remaining unclaimed for two years after such principal or interest
shall have become due and payable shall be repaid to the Province (with interest
calculated in accordance with arrangements to be made between the Province and
the Fiscal Agent from time to time) and the registered holder of a Bond may
thereafter look only to the Province for any payment to which such holder may be
entitled.
(e) Any payment made to or for the account of the Fiscal Agent or any
registered holder of Bonds in respect of any amount payable by the Province
pursuant to the Bonds or this
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Agreement in any currency (the "Original Currency") which payment is made in
another currency (the "Other Currency") pursuant to any judgment or order of a
Court or tribunal of any jurisdiction, shall constitute a discharge to the
Province only to the extent of the amount of the Original Currency which the
Fiscal Agent or the registered holder, as the case may be, acting in a
reasonably prompt manner, is able to purchase with the Other Currency so
received. The Province shall, as a separate and independent obligation which
shall not be merged in any such judgment or order, pay or cause to be paid the
amount not so discharged in accordance with this subsection (e) and indemnify
each of the Fiscal Agent or the registered holder in question against any loss
or damage as a result of any such amount being paid in the Other Currency.
8. MUTILATED, DEFACED, DESTROYED, STOLEN OR LOST CERTIFICATES.
(a) If any Bond certificate is mutilated, defaced, destroyed, stolen or
lost, application for replacement may be made to the Fiscal Agent at the
Fiscal Agent's Office 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 Fiscal Agent shall thereupon cancel the mutilated or defaced certificate
or adjust the Register to reflect the 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 dated so that neither gain nor loss of 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 destroyed, stolen or lost
for which a replacement Bond has been issued, is presented to the Fiscal Agent
for payment on the Maturity Date (as defined herein), the Redemption Date or for
registration of transfer or exchange, the Fiscal Agent 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 in subsection (c), the
principal amount of the Bonds is due and payable on May 30, 2013 (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, the Fiscal Agent shall on behalf of the Province cause to be given to
registered holders of the Bonds in accordance with Section 19(b), not less than
30 days and no more than 60 days prior to the Redemption Date, 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.
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(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, if definitive Bonds have been
issued in accordance with Section 6, the Province may cause the Fiscal Agent to
cancel any Bonds so purchased.
(d) If the Province elects to cancel any Bonds purchased by it when
Bonds are held in the form of a Global Bond, it may require the Fiscal Agent 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. In addition, upon the Province's cancellation of any such
Bonds, (i) the Fiscal Agent shall deem that the maximum amount of the Bonds to
be issued and outstanding at any time (as described in Section 4) has been
reduced by the principal amount of the Bonds so cancelled and (ii) if the
principal amount of Bonds so cancelled equals or exceeds the principal amount of
the last Global Bond (in sequential order by certificate number) and the
Province so instructs, the Fiscal Agent shall cancel such Global Bond, to
reflect the reduction of the maximum amount of the Bonds to be issued and
outstanding at any time.
10. CANCELLATION AND DESTRUCTION. All Bonds which are paid on the
Maturity Date or Redemption Date, or surrendered for registration of transfer or
exchange for other certificates, shall be cancelled by the Fiscal Agent who
shall register such cancellation. The Fiscal Agent 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), furnish the Province with a
certificate or certificates of cancellation stating the serial numbers and total
number of Bonds that have been cancelled. The Fiscal Agent shall destroy all
cancelled Bonds in accordance with the instructions of the Province and shall
furnish to the Province, on a timely basis, a certificate or 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
Fiscal Agent is acting solely as agent of the Province and does not assume any
obligation or relationship of agency or trust for or with any of the holders of
the Bonds, except that all funds held by the Fiscal 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 FISCAL AGENT. The Fiscal Agent 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 communication 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 Fiscal Agent 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 or
attorney-in-fact of the Province.
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(c) RIGHT OF FISCAL AGENT TO OWN BONDS. The Fiscal Agent and its
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 Fiscal Agent, 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
committee or body of holders of Bonds or other obligations of the Province as
freely as if it were not the Fiscal Agent hereunder or they were not such
officers, directors or employees.
12. EXPENSES AND INDEMNITY. (a) In connection with the Fiscal
Agent's appointment and duties under this Agreement and the Bonds, the Province
will pay the Fiscal Agent compensation in an amount separately agreed upon by
the Province and the Fiscal Agent, subject to the provisions of the FINANCIAL
ADMINISTRATION ACT (British Columbia). The Province will indemnify and hold
harmless the Fiscal Agent against all claims, actions, demands, damages, costs,
losses and liabilities which may be incurred by the Fiscal Agent by reason of,
or in connection with, the Fiscal Agent's appointment and duties as such (but
not in its capacity as custodian for DTC), except as such result from any
negligent act or omission, bad faith or willful misconduct of the Fiscal Agent
or its directors, officers, employees or agents. In addition, the Province
shall, pursuant to arrangements separately agreed upon by the Province and the
Fiscal Agent, transfer to the Fiscal Agent, upon presentation of substantiating
documentation satisfactory to the Province, amounts sufficient to reimburse the
Fiscal Agent for certain out-of-pocket expenses reasonably incurred by it in
connection with its services. The obligation of the Province under this
subsection shall survive payment of the Bonds and resignation or removal of the
Fiscal Agent.
(b) The Fiscal 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 Fiscal Agent or its directors, officers,
employees or agents. The obligations of the Fiscal Agent under this subsection
shall survive payment of the Bonds and resignation or removal of the Fiscal
Agent.
(c) 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 the indemnifying party 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 may be sought
hereunder
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(whether or not the indemnifying party is an actual or potential party to such
claim, action, suit or proceeding). 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. In no event shall the indemnifying party be liable
for the fees 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.
13. (a) SUCCESSOR FISCAL AGENT. The Province agrees that there shall
at all times be a Fiscal Agent hereunder which shall be a bank or trust company
organized and doing business under the laws of the United States or The State of
New York and be 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 that the Province may choose to act at
any time as its own fiscal agent, transfer agent, registrar and principal paying
agent.
The Fiscal Agent 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 Fiscal Agent may be amalgamated, merged or converted,
or any corporation with which the Fiscal Agent may be consolidated, or any
corporation resulting from any amalgamation, merger, conversion or consolidation
to which the Fiscal Agent shall sell or otherwise transfer all or substantially
all of its corporate trust business provided that it shall be qualified as
described in subsection (a), shall be the successor Fiscal Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto, but subject to prior notice to and the prior
approval of the Province.
(b) RESIGNATION AND REMOVAL. The Fiscal Agent 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 Fiscal Agent at
any time by giving written notice to the Fiscal Agent specifying the date on
which such removal shall become effective. Such resignation or removal shall
only take effect upon the appointment by the Province of a successor Fiscal
Agent qualified as described in subsection (a) and upon the acceptance of such
appointment by such successor Fiscal Agent. Any Paying Agent may resign or may
be removed at any time upon like notice, and the Province in any case may
appoint in substitution therefor a new Paying Agent or Paying Agents.
(c) BANKRUPTCY OR INSOLVENCY OF FISCAL AGENT. The appointment of the
Fiscal Agent hereunder shall forthwith terminate, whether or not notice of such
termination shall have been given, if at any time the Fiscal Agent becomes
incapable of performing its duties hereunder, or is adjudged bankrupt or
insolvent, or files a voluntary petition 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
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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 Fiscal Agent,
or if a liquidator or receiver of the Fiscal Agent 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 Fiscal Agent 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 Fiscal Agent, or if the Fiscal Agent shall become
unable to act as such or shall cease to be qualified as described in subsection
(a), the Province shall appoint a successor Fiscal Agent qualified as described
in subsection (a). Upon the appointment of a successor Fiscal Agent and its
acceptance of such appointment, the retiring Fiscal Agent 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
other properties then in its possession as Fiscal Agent and shall thereupon
cease to act hereunder.
(e) PAYMENT OF CERTAIN FISCAL AGENT'S FEES UPON TERMINATION. If the
Fiscal Agent resigns or ceases to act hereunder, the Fiscal Agent shall only be
entitled to any 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 Fiscal Agent has acted hereunder.
(f) NOTICES TO REGISTERED HOLDERS. The Province shall notify the
registered holders of Bonds pursuant to the notice provisions in Section 19(b),
in the event: (i) a successor Fiscal Agent or any Paying Agent is appointed
pursuant to this Agreement or (ii) the Fiscal Agent or any Paying Agent resigns
or is removed by the Province.
14. MEETINGS OF REGISTERED HOLDERS OF BONDS. (a) The Fiscal Agent
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 to its reasonable satisfaction by
the Province or the registered holders of the 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 Fiscal Agent 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 such meeting. Every such meeting shall be held at such place as may
be approved or determined by the Province.
(b) At least 30 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 post to the Fiscal
Agent unless the meeting has been called by the Fiscal Agent, 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 to the time fixed for the meeting, (i) in the
case of Bonds issued in the form of a Global
11
Xxxx, 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 deposited their Bonds with the Fiscal
Agent or any other person authorized for such purpose by the Fiscal Agent or the
Province, shall be entitled to obtain voting certificates for appointing proxies
(subject to such procedures and requirements as the Province and the Fiscal
Agent 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) Some person, who need not be a registered holder of Bonds,
nominated in writing by the Fiscal Agent, shall be chair 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 chair, and, failing such choice, the Province may appoint a chair.
(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 then outstanding
Bonds. 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 chair appoints some other place, or some other day or
time of which not less than 7 days' 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 then outstanding Bonds.
(f) The chair of any meeting at which a quorum of the registered
holders of Bonds is present may, with the consent of registered holders
represented at the meeting of at least a majority in principal amount of the
Bonds held by persons present at the meeting in person or by proxy, adjourn the
meeting and no notice of such adjournment need be given except such notice, if
any, as the meeting may prescribe.
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(g) Every motion or question submitted to a meeting (except a motion
to adjourn the meeting pursuant to subsection (f)) 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 chair 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 chair 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 then outstanding Bonds, a poll shall be
taken in such manner as the chair 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 U.S. $1,000 principal amount of Bonds of
which the person shall then be the registered holder. A proxy need not be a
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 U.S. $1,000 principal amount
of Bonds of which they are joint registered holders.
(i) The Province and the Fiscal Agent, by their authorized
representatives, officers and directors, and the financial and legal advisors of
the Province and the Fiscal Agent 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, the registered holders of the
Bonds may by Extraordinary Resolution (as defined below) agree with the Province
to modify or amend this Agreement and the Bonds (including the terms and
conditions thereof). An Extraordinary Resolution duly passed at any such meeting
shall be binding on all registered holders of Bonds, whether present or not;
PROVIDED HOWEVER, no such modification or amendment to this Agreement or the
terms and conditions of the Bonds shall, 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 this 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 66-2/3% of the principal amount of the then
outstanding Bonds represented at the meeting in person or by proxy and voting on
the resolution or as an instrument in writing signed in one or more counterparts
by the registered holders of not less than 66-2/3% in principal amount of the
then 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
then outstanding Bonds, or at any adjourned meeting called by the
13
Province or the Fiscal Agent, one or more persons being or representing
registered holders of Bonds whatever the principal amount of the Bonds so held
or represented.
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 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 this subsection (j) 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 Fiscal Agent shall be bound to give effect
accordingly to every such Extraordinary Resolution.
(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 Fiscal Agent and any such minutes, if signed by the
chair of the meeting at which such resolutions were passed or proceedings taken,
or by the chair 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 at the meeting to
have been duly passed and taken.
(l) The Fiscal Agent, or the Province with the approval of the Fiscal
Agent, 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 Fiscal Agent, or the Province with the approval of the Fiscal
Agent, may 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 facsimile transmission or another means of recorded
communication before the meeting to the Province or to the Fiscal Agent
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.
Any regulations 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 equally and ratably 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
14
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 such further bonds
shall be issued with the benefit of an agreement supplemental to this Agreement.
16. REPORTS. The Fiscal Agent shall furnish to the Province such
reports as may be required by the Province relative to the Fiscal Agent's
performance under this Agreement. The Province may, whenever it deems it
necessary, inspect any books and records maintained by the Fiscal Agent pursuant
to this Agreement.
17. FORWARDING OF NOTICE. If the Fiscal Agent shall receive any
notice or demand addressed to the Province pursuant to the provisions of the
Bonds, the Fiscal Agent 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 provisions contained herein or
in the Bonds, or effecting the issue of further bonds as described under Section
15, or in any other manner which the Province may deem necessary or desirable
and which, in the reasonable opinion of the parties hereto, shall not adversely
affect the interests of holders of Bonds.
19. NOTICES. (a) Any communication from the Province to the Fiscal
Agent with respect to this Agreement shall be addressed to The Bank of New York,
Global Finance International, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Corporate Trust Department; Facsimile No.: (000) 000-0000 and
any communications from the Fiscal Agent to the Province with respect to this
Agreement shall be addressed to the Ministry of Finance, Provincial Treasury,
P. O. Box 9423 Stn. Prov. Govt., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx, X0X 0X0, Attention: Debt Management Branch; Facsimile No.:
(000) 000-0000 (or such other address or facsimile number as shall be
specified in writing by the Fiscal Agent or by the Province, as the case may
be) and shall be delivered in person or sent by first class prepaid post or
by facsimile transmission subject, in the case of facsimile transmission, to
confirmation by telephone, to the foregoing addresses or using the foregoing
facsimile numbers. 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 post 7 business days (in the place of posting) 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
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 Canada and, as long as the Bonds are
listed on the Luxembourg Stock Exchange, in the LUXEMBURGER WORT in Luxembourg.
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 Fiscal Agent, shall determine. Any such notice shall be deemed to have
been given on the date of such publication or, if published more than once on
different dates, on the first date on which
15
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. If the Bonds
are being held in definitive form, notices will be validly given if sent by
first class prepaid post addressed to the registered holders thereof at their
respective addresses appearing in the Register and if, in the case of joint
holders of any Bond, more than one address appears in the Register in respect of
such joint holding, such notice shall be addressed only to the first address so
appearing. Any notice so given shall be deemed to have been given on the day on
which it has been sent by post.
20. REFERENCES. Except as otherwise provided in this Agreement,
references in this Agreement to sections or subsections are to sections or
subsections of this Agreement.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and a counterpart may be delivered by facsimile transmission. Each
counterpart shall be deemed an original and together shall constitute one and
the same instrument.
22. HEADINGS. The headings for the sections of this Agreement are for
convenience only and are not part of this Agreement.
23. ENUREMENT. This Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns.
24. WAIVER. Any provision of this Agreement for the sole benefit of
one party to this Agreement may be waived in whole or in part by that party
without prejudice to that party's rights in the event of a breach of any other
provision of this Agreement. The waiver by either party of any provision of this
Agreement shall not be taken or held to be a waiver of any further breach of the
same provision. A waiver shall be binding on the waiving party only if it is in
writing.
25. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the Province of British Columbia and the laws of
Canada applicable therein.
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency
Agreement as of the date first above written.
PROVINCE OF BRITISH COLUMBIA
By /s/ Xxxx Xxxxxx
-------------------------------------
NAME: Xxxx Xxxxxx
TITLE: Deputy Minister of Finance
16
THE BANK OF NEW YORK
By /s/ Xxxxxxx Xxxx
-------------------------------------
NAME: Xxxxxxx Xxxx
TITLE: Assistant Vice President
17
EXHIBIT 1
[FORM OF GLOBAL BOND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") 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 DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CANADA
PROVINCE OF BRITISH COLUMBIA
ISSUE OF 4.30% BONDS, SERIES BCUSG-3, DUE MAY 30, 2013 ISSUED PURSUANT TO THE
FINANCIAL ADMINISTRATION ACT, CHAPTER 138, REVISED STATUTES OF BRITISH COLUMBIA,
1996, AS AMENDED, AND AN ORDER OF THE LIEUTENANT GOVERNOR IN COUNCIL OF THE
PROVINCE OF BRITISH COLUMBIA
REGISTERED NO. 0001 CUSIP: 110709 FH0
PROVINCE OF BRITISH COLUMBIA
4.30% BOND, SERIES BCUSG-3, DUE MAY 30, 2013
The Province of British Columbia (the "Province"), for value received,
hereby promises to pay to Cede & Co., or its registered assigns, the principal
sum of $500,000,000 (the "Principal Amount") in the lawful money of the United
States of America on May 30, 2013 (the "Maturity Date") or on such earlier date
as the Principal Amount may become payable hereunder (the "Redemption Date"),
upon presentation and surrender of this Global Bond and to pay interest thereon
at the rate of 4.30% per annum from and including April 29, 2003 together with
Additional Amounts (as defined herein), if any, until the Principal Amount is
paid, in semi-annual installments in arrears on the 30th day of November and the
30th day of May in each year commencing on November 30, 2003 (each such date an
"Interest Payment Date") until and including the Maturity Date, all in
accordance with the terms of this Global Bond.
This Global Bond is a fully registered global bond which initially
represents the duly authorized issue of debt securities of the Province
designated as its 4.30% Bonds, Series BCUSG-3, Due May 30, 2013 (the
"Bonds"), which issue is initially limited in aggregate principal amount to
U.S. $500,000,000. The Bonds and all the rights of the registered holders
thereof are expressly subject to a fiscal agency agreement dated as of April
29, 2003 (the "Fiscal Agency Agreement", which term includes any agreement
supplemental thereto) between the Province and The Bank of New York, as
fiscal agent, registrar, transfer agent and principal paying agent (the
"Fiscal Agent", which term includes any successor as fiscal agent, registrar,
transfer agent and principal paying agent appointed in accordance with the
Fiscal Agency Agreement), to which Fiscal Agency Agreement reference is
hereby made for a statement of the respective rights, duties and immunities
of the Province, the Fiscal Agent and registered holders of the Bonds and the
terms upon which the Bonds are, and are to be, authenticated, registered and
18
delivered. The Bonds and the Fiscal Agency Agreement together constitute a
contract, all the terms and conditions of which the registered holders by
acceptance hereof assent to and are deemed to have notice of. Capitalized terms
not defined herein shall have the meaning assigned to them in the Fiscal Agency
Agreement.
The Bonds are issued under the authority of the FINANCIAL
ADMINISTRATION ACT, Revised Statutes of British Columbia 1996, Chapter 138, as
amended, and an Order of the Lieutenant Governor in Council of British Columbia.
The Bonds shall for all purposes be governed by, and construed in accordance
with, the laws of the Province of British Columbia and the laws of Canada
applicable therein.
The Bonds are direct and unconditional general obligations of the
Province. The Bonds are not secured but rank equally and ratably with all other
general obligations of the Province outstanding from time to time without any
preference granted by the Province. Payments of principal of and interest on the
Bonds will be payable out of the Consolidated Revenue Fund of British Columbia.
Interest on the Bonds will accrue from and including the most recent
Interest Payment Date to which interest has been paid, or, if no interest has
been paid or duly provided for, from and including April 29, 2003, until the
principal thereof has been paid or duly made available for payment. Any overdue
principal or interest on the Bonds shall bear interest at the rate of 4.30% per
annum (both before and, subject to applicable law, after judgment) until paid,
or if earlier, when the full amount of the monies payable has been received by
the Fiscal Agent 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 persons in
whose names the Bonds are registered at the close of business on May 15 or
November 15 (each a "Record Date") immediately preceding such Interest Payment
Date. If the Bonds become redeemable prior to maturity in accordance with the
terms and conditions of this Global Bond, any interest payable under the Bonds
on a Redemption Date which is not an Interest Payment Date will be payable to
the persons in whose names the Bonds are registered on the Redemption Date.
Interest payments on the Bonds will include interest accrued to but excluding
the dates on which such interest payments are due. Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months and, in the
case of an incomplete month, the actual number of days elapsed.
If the Maturity Date, the Redemption Date or any other Interest Payment
Date falls on a day which is not a Business Day, the registered holders of the
Bonds shall not be entitled to payment until the next following Business Day,
and no additional interest shall accrue as a result of any such delay in
payment. If a Record Date falls on a day which is not a Business Day, then that
Record Date shall be deemed to be the immediately preceding Business Day. For
the purpose of this paragraph, "Business Day" means a day other than a Saturday
or Sunday on which banking institutions in New York, New York, London, England
and Toronto, Ontario are not authorized or obligated by law or regulation to
close.
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The principal of the Bonds is payable to the registered holders thereof
against surrender of the Bonds at the Fiscal Agent's Office (as defined below)
on the Maturity Date or the Redemption Date. 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. Payments of principal of and interest on the Bonds will be made by the
Province in immediately available funds and, in the case of payments under this
Global Bond, will be made directly to Cede & Co., as nominee of DTC, for payment
to DTC participants in accordance with customary procedures established from
time to time by DTC.
All payments of principal of and interest on the Bonds will be made by
the Province without deduction for, or on account of, any present taxes or
duties of whatever nature imposed or levied by Canada, or any province,
political subdivision or taxing authority therein or thereof. If, as a result of
the laws of Canada, the official application of the laws of Canada or the
regulations of any taxing authority therein or thereof or any treaty affecting
taxation to which Canada is a party or the official application thereof, the
Province shall be required to deduct or withhold any taxes or duties from any
payments due under the Bonds, the Province (subject to its right of redemption
described herein) will pay such additional amounts (the "Additional Amounts") as
may be necessary in order that every net payment of the principal of and
interest on the Bonds will be not less than the amount provided for in the
Bonds. The Province shall not, however, be obliged to pay such Additional
Amounts on account of any such taxes or duties: (a) to which a beneficial owner
of a Bond is subject otherwise than merely by the ownership of Bonds or the
receipt of income therefrom; or (b) which become payable as a result of any Bond
being presented for payment on a date more than 30 days after the Relevant Date
except to the extent that the registered holder would have been entitled to such
Additional Amounts on presenting the same for payment on such thirtieth day. For
this purpose the "Relevant Date" means:
(i) the date on which the payment in respect of the Bonds first becomes
due; or
(ii) if the full amount of the monies payable shall not have been duly
provided to the Fiscal Agent on or prior to such due date, the date on
which such monies shall have been so provided.
References in this Global Bond to principal and interest shall include
such Additional Amounts.
The Province shall not be obliged to pay any Additional Amounts in
respect of any tax, assessment or other governmental charge required to be
deducted or withheld from a payment to an individual and that is required to be
made pursuant to any European Union Directive on the taxation of savings income
relating to the proposal for a directive on the taxation of savings income
published by the European Union's Economic and Finance Ministers ("ECOFIN")
Council on December 13, 2001 or otherwise implementing the conclusions of the
ECOFIN Council meeting of 26-27 November 2000, or any law implementing or
complying with, or introduced in order to conform to, any such directive or
proposal.
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The principal amount of the Bonds is due and payable on May 30, 2013.
The Bonds are not redeemable prior to maturity unless certain events occur
involving Canadian taxation as provided below and are not repayable at the
option of registered holders prior to maturity. The Bonds will become void
unless presented for payment within a period of the lesser of six years, or the
period prescribed by law, from the Relevant Date for payment.
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 not more than 60
days' notice to registered holders of Bonds in accordance with 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
above, 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 April 22, 2003, 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
issuance of any notice of redemption pursuant to this paragraph, the Province
shall deliver to the Fiscal Agent 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.
If (a) there is a non-payment of the principal of or interest on any of
the Bonds and such non-payment continues for a period of more than 15 days after
written notice of such non-payment is given to the Province by a registered
holder of Bonds or (b) there is failure in the performance of any other covenant
of the Province contained in the Bonds which continues for more than 30 days
after written notice requiring such failure to be remedied is given to the
Province by a registered holder of Bonds, then the registered holder giving such
notice may give a further written notice to the Province demanding that the
principal amount of all or any of the Bonds held by such registered holder
become immediately repayable, together with accrued interest, and upon the
giving of such further notice, such Bonds shall become repayable accordingly.
Any such notice or further notice from a registered holder of Bonds to the
Province shall be given to the Province by delivering such notice or further
notice to the Fiscal Agent.
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 Fiscal Agent to
cancel any Bonds so purchased in the circumstances described in the Fiscal
Agency Agreement.
The Fiscal Agent has been appointed as the registrar for the Bonds, and
as such will maintain at its office in the Borough of Manhattan, in The City and
State of New York or at such other office reasonably satisfactory to the
Province (the "Fiscal Agent's Office") a register (the "Register") for the
initial registration, and registration of transfers and exchanges, of Bonds.
21
Subject to the limitations, terms and conditions set forth herein and in the
Fiscal Agency Agreement, a Bond may be transferred at the Fiscal Agent's Office
by surrendering the Bond to the Fiscal Agent for cancellation, and thereupon the
Fiscal Agent shall issue and register in the name of the transferee, in exchange
therefor, a new Bond 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 Fiscal Agent's Office for Bonds in definitive
registered form without coupons, in authorized denominations of U.S.$1,000 and
integral multiples thereof, in an equal aggregate principal amount and having
identical terms and conditions as this Global Bond (except insofar as they
relate specifically to this Global Bond). On or after such exchange, the Fiscal
Agent 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 a Xxxx is
surrendered for transfer, it shall be accompanied by a written instrument of
transfer in form satisfactory to the Fiscal Agent and executed by the registered
holder in person or by the registered holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfer or exchange
other than reasonable fees for the replacement of lost, stolen, mutilated,
defaced or destroyed Bond certificates, 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 Fiscal Agent shall not be required to register any transfer or
exchange of any Bond during the period from any Record Date to the corresponding
Interest Payment Date. Neither the Province nor the Fiscal Agent 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 exchange. No provision of the Bonds 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 the Bonds at the time, place, and rate, and in the coin or currency,
herein prescribed.
The Province and the Fiscal Agent shall deem and treat the person in
whose name a Bond is registered as the absolute owner of such Bond for all
purposes whatsoever, whether or not such Bond is overdue, and neither the
Province nor the Fiscal Agent shall be affected by notice to the contrary. All
payments to or on the order of the registered holder of any Bond are valid and
effectual to discharge the liability of the Province or the Fiscal Agent on such
Bond to the extent of the sum or sums paid.
The Fiscal Agency Agreement and the Bonds may be amended or
supplemented by the Province, on the one hand, and the Fiscal Agent, 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 in the Fiscal Agency Agreement
or the Bonds, or effecting the issue of further bonds as described below, or in
any manner which the Province may deem necessary or desirable and which, in the
reasonable opinion of the Province, on the one hand, and the Fiscal Agent, on
the other hand, will not adversely affect the interests of holders of the Bonds.
22
In addition to the amendments or supplements to the Fiscal Agency
Agreement or the Bonds permitted by the provisions in the immediately preceding
paragraph, the Fiscal Agency Agreement contains provisions for registered
holders of Bonds to agree with the Province to modify or amend by Extraordinary
Resolution (as defined below) the Fiscal Agency Agreement and the Bonds
(including the terms and conditions contained herein). An Extraordinary
Resolution duly made in accordance with the provisions of the Fiscal Agency
Agreement shall be binding on all registered holders of Bonds whether present or
not; PROVIDED, HOWEVER, that no such modification or amendment to the Fiscal
Agency Agreement or to the terms and conditions of the Bonds shall, 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
held in accordance with the provisions of the Fiscal Agency Agreement and the
Bonds by the affirmative vote of the registered holders of not less than 66-2/3%
of the principal amount of the then outstanding Bonds represented at the meeting
in person or by proxy and voting on the resolution or as an instrument in
writing signed in one or more counterparts by the registered holders of not less
than 66-2/3% in principal amount of the then 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 then outstanding Bonds, or at any
adjourned meeting called by the Province or the Fiscal Agent, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
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 Canada and, as long as the Bonds are
listed on the Luxembourg Stock Exchange, in the LUXEMBURGER WORT in Luxembourg.
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 Fiscal Agent, shall determine. Any such notice shall be deemed to have
been given on the date of such publication or, if published more than once 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 this Global Bond. If the Bonds are being held in definitive form,
notices will be validly given if sent by first class prepaid post addressed to
the registered holders thereof at their respective addresses appearing in the
Register and if, in the case of joint holders of any Bond, more than one address
appears in the Register in respect of such joint holding, such notice shall be
addressed only to the first address so appearing. Any notice so given shall be
deemed to have been given on the day of it being sent by post.
23
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
equally and ratably 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 such further bonds shall be issued
subject to an agreement supplemental to the Fiscal Agency Agreement.
It is hereby certified and declared that all acts, conditions and
things necessary to be done and to exist precedent to and in the issuance of
this Global Bond have been properly done, fulfilled and performed and do exist
in regular and due form as required by the laws of the Province of British
Columbia and the laws of Canada applicable therein.
Unless the certificate of authentication below has been executed by the
Fiscal Agent 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.
IN WITNESS WHEREOF, the Province of British Columbia has caused the
manual signature and the manual countersignature of its duly authorized
signatories to be affixed to this Global Bond.
DATED: April 29, 2003 Countersigned:
-------------------------------- --------------------------------
Authorized Signatory Authorized Signatory
FISCAL AGENT'S CERTIFICATE
OF AUTHENTICATION
This Global Bond is one of the 4.30% Bonds, Series BCUSG-3, Due May 30, 2013
referred to herein.
THE BANK OF NEW YORK
as Fiscal Agent
By:
-------------------------------
Authorized Signatory
24
III UNDERWRITING AGREEMENT
CONFORMED COPY
PROVINCE OF BRITISH COLUMBIA
(Canada)
UNDERWRITING AGREEMENT
April 22, 2003
Xxxxxx Brothers Inc.
CIBC World Markets plc
As Representatives of the several Underwriters
Dear Representatives:
i). INTRODUCTORY. The Province of British Columbia (the "PROVINCE")
proposes to issue and sell the principal amount of its debt securities (the
"SECURITIES"), registered under the registration statement referred to in
Section 2(a), identified in Schedule I hereto to the underwriters named in
Schedule II hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"). This is to confirm the arrangements
with respect to the purchase of the Securities by the several Underwriters.
ii). REPRESENTATIONS AND WARRANTIES OF THE PROVINCE. The Province
represents and warrants to and agrees with, the several Underwriters that:
(1) A registration statement or registration statements
relating to the Securities has or have been filed with the Securities
and Exchange Commission (the "COMMISSION"), and has or have become
effective under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). The registration statement or registration statements, including
the exhibits
thereto and the documents incorporated by reference therein, as amended
at the date of this Agreement, is or are hereinafter referred to as the
"REGISTRATION STATEMENT", and the prospectus included in the
Registration Statement, as supplemented to reflect the terms of the
Securities referred to in this Agreement and the terms of offering
hereof, including the documents incorporated by reference therein, is
hereinafter referred to as the "Prospectus". Any reference herein to
the terms "AMEND", "AMENDMENT", "SUPPLEMENT" or "SUPPLEMENTATION" with
respect to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), after the date
of this Agreement or the issue date of the Prospectus, deemed to be
incorporated therein by reference.
(2) Each document filed or to be filed by the Province with
the Commission pursuant to the Exchange Act and incorporated by
reference in the Prospectus fully complied at the time it was filed
with the Commission or will fully comply when so filed in all material
respects with the Exchange Act and the rules and regulations
thereunder.
(3) On the effective date of the Registration Statement, the
Registration Statement fully complied in all material respects with the
provisions of the Securities Act and the rules and regulations
thereunder (the "RULES UNDER THE SECURITIES ACT") and did not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and on the date of this Agreement
and at all times subsequent hereto up to and including the Closing Date
(as defined below), the Registration Statement and Prospectus will
fully comply in all material respects with the provisions of the
Securities Act and the Rules under the Securities Act and will not
contain an untrue statement of a material fact and will not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the
Province makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Province by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof.
2
(4) The Province has full power and authority to execute and
deliver this Agreement and to issue and sell the Securities.
(5) This Agreement has been duly authorized, executed and
delivered by the Province and is a valid and legally binding agreement
of the Province, except as rights to indemnity and contribution
hereunder may be limited under applicable law, and the Fiscal Agency
Agreement, when duly authorized, executed and delivered by the
Province, will be a valid and legally binding agreement of the
Province, in each case subject to the qualifications contained in the
legal opinion delivered pursuant to Section 8(c).
(6) The Securities, when duly executed, authenticated and
delivered to and paid for by the Underwriters in accordance with the
provisions of this Agreement and the Fiscal Agency Agreement, will
constitute valid, legally binding, direct and unconditional general
obligations of the Province in accordance with their respective terms
and will rank equally with other unsecured securities constituting
general obligations of the Province outstanding on the date of issue of
such Securities, subject to the qualifications contained in the legal
opinion delivered pursuant to Section 8(c).
(7) All authorizations, approvals, consents, orders and
waivers required under British Columbian and Canadian law to permit the
execution and delivery of this Agreement and the performance by the
Province of its obligations hereunder have been obtained and are in
full force and effect; and all authorizations, approvals, consents,
orders and waivers required under British Columbian and Canadian law to
permit the execution and delivery of the Fiscal Agency Agreement, the
issuance of the Securities and the performance by the Province of its
obligations thereunder shall have been obtained and shall be in full
force and effect as of the Closing Date.
(8) The issue, sale, execution, delivery and authentication
of the Securities and the execution and delivery of this Agreement and
the Fiscal Agency Agreement and performance of their respective terms
will not conflict with, or result in any breach of, any provisions of,
or constitute a default under any agreement or instrument to which the
Province is a party or by which it is bound, which conflict or breach
would affect the legality, validity or enforceability of the
Securities, this Agreement, the Fiscal Agency Agreement or the ability
of the Province to perform its obligations hereunder or thereunder.
3
In this section, "Fiscal Agency Agreement" will have the meaning
ascribed to it in Section 4.
iii). PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Province
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Province, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
iv). DELIVERY AND PAYMENT. Delivery of and payment for the
Securities shall be made at the location, on the date and at the time specified
in Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives and the Province shall agree upon),
which date and time may be postponed by agreement between the Representatives
and the Province or as provided in Section 10 hereof (such date and time of
delivery and payment for the Securities being herein called the "CLOSING DATE").
The Securities will be issued in the form of one or more global securities
(collectively, the "GLOBAL SECURITY"), which shall be registered in the name of
Cede & Co., as nominee of The Depository Trust Company ("DTC"). Delivery of the
Global Security shall be made to the Representatives or to their order for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to the
Province in immediately available (same day) funds by transfer to a U.S. dollar
account specified by the Province. The Global Security shall be substantially in
the form annexed to the Fiscal Agency Agreement to be dated April 29, 2003 and
identified on Schedule I hereto (the "FISCAL AGENCY AGREEMENT").
The Global Security shall be made available for inspection and checking
by the Representatives in New York, New York or another location to be mutually
agreed upon by the parties hereto not later than 3:00 P.M., local time, on the
business day prior to the Closing Date.
v). LISTING. The Province agrees with the Underwriters to cooperate
in the filing of an application to list the Securities on the Luxembourg Stock
Exchange (the "STOCK EXCHANGE") prior to the Closing Date. The Province further
agrees to furnish to the Stock Exchange all documents, instruments, information
and undertakings and to publish all advertisements or other material that may be
necessary in order to effect the listing of the Securities and to cause such
listing to be continued for so long as any of the Securities remain outstanding;
PROVIDED, HOWEVER, that if in the opinion of the Province, the
4
continuation of such listing shall become unduly onerous, then the Province
shall use its best efforts to obtain, as promptly as possible, the listing of
the Securities on some other securities exchange reasonably acceptable to the
Representatives and the Province.
vi). COVENANTS OF THE PROVINCE. The Province covenants and agrees
with the several Underwriters that:
(1) Prior to the termination of the offering of the
Securities, the Province will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
related prospectus and will not effect such amendment or
supplementation to which the Representatives reasonably object, except
that the Representatives may not object to the filing, as exhibits to
an amendment on Form 18-K/A to the Province's Annual Report on Form
18-K, of reports prepared by the Province in the ordinary course; the
Province will also advise the Representatives promptly of the
effectiveness of the Registration Statement, of any further amendment
or supplementation of the Registration Statement or the Prospectus, and
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(2) If at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act any
event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Province promptly
will prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance.
(3) As soon as practicable after public release, the Province
will make generally available to securityholders a statement of
revenues and expenditures covering each of its fiscal years which will
satisfy the provisions of Section 11(a) of the Securities Act.
(4) The Province will furnish to each Representative copies
of the Registration Statement (including all exhibits and documents
5
incorporated by reference), and each amendment thereto which shall
become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Securities Act, of as many copies of any preliminary prospectus,
the Prospectus, and all documents incorporated by reference therein,
all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives may
reasonably request.
(5) The Province will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States as
the Representatives designate and will continue such qualifications in
effect so long as required for the distribution of the Securities;
PROVIDED, HOWEVER, that the Province shall not be obligated to take any
action in connection with such qualification that would subject it to
service of process generally or require it to qualify as a dealer in
securities. The Province will pay all expenses incident to the
performance of its obligations under this Section 6(e), and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) reasonably incurred by them therewith.
(6) So long as any of the Securities are outstanding, the
Province will furnish to each Representative, as soon as practicable
after the approval and the public release thereof, its annual budget,
and, as soon as practicable after the determination and the public
release thereof, its annual statement of revenues and expenditures.
(7) The Province will pay (i) all expenses in connection with
(a) the preparation, issue, execution and delivery of the Securities
(including fees of the fiscal agent under the Fiscal Agency Agreement
and any paying agent appointed pursuant thereto), (b) the fee incurred
in filing the Registration Statement (including all amendments thereto)
with the Commission, (c) all costs, expenses, fees or commissions,
payable on or in connection with the granting of listing for the
Securities on the Stock Exchange, and (d) any fee payable to rating
services in connection with the rating of the Securities, (ii) all
costs incurred in connection with the printing of the Registration
Statement, the Prospectus and each preliminary prospectus (including
all amendments thereof or supplements thereto) and the cost of
delivering the same to locations designated by the Underwriters and
(iii) the cost of copying the documents incorporated by reference in
the Prospectus in such quantities as the Underwriters may reasonably
request and the cost of delivering the same to locations
6
designated by the Underwriters. Except as provided in Section 6(h) and
Sections 9 and 12 hereof, the Province shall not be required to pay or
bear any fees or expenses of the Underwriters.
(8) If the sale of the Securities is consummated hereunder,
the Province agrees to pay to the Representatives on behalf of the
Underwriters on the Closing Date an amount of up to U.S. $90,000 to be
applied in reimbursement of the reasonable out-of-pocket expenses and
costs of the Underwriters (including any value added or equivalent tax
on such expenses and costs) directly attributable to the offering and
sale of the Securities. The Representatives shall be entitled to deduct
the said sum of U.S. $90,000 from the payment of the purchase price as
provided in Section 3 hereof. The Representatives shall supply the
Province with an itemized account, together with supporting information
in a form satisfactory to the Province, for such expenses and shall
repay to the Province, in U.S. dollars and within 90 days of the
Closing Date, any shortfall between the expenses so itemized and
U.S. $90,000.
(9) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, the Province agrees
not to offer, sell or contract to sell any United States dollar
denominated debt securities of the Province with a maturity in excess
of one year without the consent of the Underwriters other than the
Securities.
vii). SELLING RESTRICTIONS. (1) Each Underwriter, on behalf of
itself and each of its affiliates that participates in the initial distribution
of the Securities, severally represents to and agrees with the Province that it
and each such affiliate has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 (the "FSMA") with
respect to anything done by it or them in relation to the Securities in, from or
otherwise involving the United Kingdom.
(2) Each Underwriter, on behalf of itself and each of its
affiliates that participates in the initial distribution of the
Securities, severally represents to and agrees with the Province that
it and each such affiliate has not offered or sold, and it and they
will not offer or sell, directly or indirectly, any of the Securities
in or to residents of Japan or to any persons for reoffering or resale,
directly or indirectly in Japan or to any resident of Japan except
pursuant to an exemption from the registration requirements of the
Securities and Exchange Law available thereunder and in compliance with
the other relevant laws of Japan.
7
(3) Each Underwriter, on behalf of itself and each of its
affiliates that participates in the initial distribution of the
Securities, severally represents to and agrees with the Province that
(i) it and each such affiliate has not offered or sold and will not
offer or sell, directly or indirectly, in Hong Kong by means of any
document, any Securities other than to persons whose ordinary business
it is to buy or sell shares or debentures, whether as principal or
agent, or in circumstances which do not constitute an offer to the
public within the meaning of the Companies Ordinance (Cap. 32) of Hong
Kong and (ii) it and each such affiliate has not issued and will not
issue, directly or indirectly, any invitation or advertisement relating
to the Securities in Hong Kong (except if permitted to do so under the
securities laws of Hong Kong) other than with respect to Securities
intended to be disposed of to persons outside Hong Kong or to be
disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of securities, whether as principal or
as agent.
(4) SALE AND DISTRIBUTION. In addition to the provisions of
Sections 7(a) through (c) above, each Underwriter, on behalf of itself
and each of its affiliates that participates in the initial
distribution of the Securities, severally represents to and agrees with
the Province that it and each such affiliate has not offered, sold or
delivered and it and they will not offer, sell or deliver, directly or
indirectly, any of the Securities or distribute the Prospectus, any
preliminary prospectus or any other offering material relating to the
Securities, in or from any jurisdiction except under circumstances that
will, to the best of its or their knowledge and belief, after
reasonable inquiry, result in compliance with the applicable laws and
regulations thereof and which will not impose any obligations on the
Province except as contained in this Agreement. In addition, the
Representatives agree with the Province to cause each selling group
member to agree to comply with the restrictions on offers and sales of
the Securities set forth in this Section 7.
(5) Without prejudice to the provisions of Sections 7(a)
through (d) and except for the qualification of the Securities for
offer and sale and the determination of their eligibility for
investment under the applicable securities laws of such jurisdictions
as the Representatives may designate pursuant to Section 6(e), the
Province shall not have any responsibility for, and each Underwriter
severally agrees with the Province that each such Underwriter and its
respective affiliates will obtain, any consent, approval or
authorization required by them for the offer, sale or delivery by them
of any of the Securities under the laws and regulations in force in any
8
jurisdiction to which they are subject or in or from which they make
such offer, sale or delivery of any of the Securities.
viii). CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
respective obligations of the several Underwriters to purchase and pay for the
Securities will be subject to the accuracy of the representations and warranties
on the part of the Province herein, to the accuracy of the statements of the
representatives of the Province made pursuant to the provisions hereof, to the
performance by the Province of its obligations hereunder and with regard to the
Securities and to the following additional conditions precedent:
(1) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted, or to the
knowledge of the Province or the Representatives, shall be contemplated
by the Commission; and the supplemented form of Prospectus shall have
been filed with the Commission pursuant to Rule 424 not later than
5:00 p.m. New York City time, on the second business day following the
date of this Agreement.
(2) Subsequent to the execution of this Agreement and prior
to the Closing Date, there shall not have occurred any material adverse
change in the financial, economic or political condition of the
Province from that set forth in the Registration Statement and the
Prospectus, and the Representatives shall have received, on the Closing
Date, a certificate dated the Closing Date and signed by the Minister
of Finance of the Province, the Deputy Minister of Finance of the
Province or another officer of the Ministry of Finance satisfactory to
the Representatives to the effect set forth herein.
(3) The Representatives shall have received an opinion of the
Attorney General of the Province, the Deputy Attorney General of the
Province, Assistant Deputy Attorney General, Legal Services Branch,
Ministry of Attorney General of the Province or another officer of the
Ministry of Attorney General of the Province satisfactory to the
Underwriters, as Canadian counsel to the Province, dated the Closing
Date, to the effect that under the laws of British Columbia and Canada
and subject to such qualifications and based on such assumptions as are
customary in British Columbia in respect of an opinion of this type:
(a) The Province has full power and authority to
execute and deliver this Agreement and to issue and sell the
Securities.
9
(b) This Agreement and the Fiscal Agency Agreement
have been duly authorized, executed and delivered by the
Province and each is a valid and legally binding agreement of
the Province, except as rights to indemnity and contribution
hereunder may be limited under applicable law.
(c) The Securities, when duly executed,
authenticated and delivered to and paid for by the
Underwriters in accordance with the provisions of this
Agreement and the Fiscal Agency Agreement, will constitute
valid, legally binding, direct and unconditional general
obligations of the Province in accordance with their
respective terms and will rank equally and ratably with other
unsecured securities constituting general obligations of the
Province outstanding on the date of issue of such Securities.
(d) All authorizations, approvals, consents, orders
and waivers required under British Columbian and Canadian law
to permit the execution and delivery of this Agreement and the
Fiscal Agency Agreement, the issuance of the Securities and
the performance by the Province of its obligations hereunder
and thereunder have been obtained and are in full force and
effect.
(e) Proceedings may be brought against the Province
in the Supreme Court of British Columbia and no applicable law
requires the consent of any public official or authority for
proceedings to be brought or judgment to be obtained against
the Province arising out of or relating to obligations under
the Securities, nor is any immunity from jurisdiction
available to the Province in any proceedings in the Supreme
Court of British Columbia brought in accordance with the Crown
Proceeding Act (British Columbia) and within applicable
limitation periods, whether or not a party to the proceedings
or the holder of a Security is resident within British
Columbia or is a citizen of Canada.
(f) The statements in the Prospectus under the
captions "Description of Bonds" and "Underwriting", insofar as
such statements constitute a summary of the legal matters or
documents referred to therein, are accurate in all material
respects, subject to the qualifications therein stated.
10
(g) Such counsel is of the opinion ascribed to it in
the Prospectus under the caption "Tax Matters--Canadian
Taxation", subject to the exceptions and qualifications stated
therein.
(h) Although such counsel is not passing upon and
assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and the Prospectus, as amended or supplemented,
based upon such counsel's participation in conferences with
representatives of the Province at which the contents of the
Registration Statement and the Prospectus and related matters
were discussed, no facts have come to such counsel's attention
which lead such counsel to believe that the Registration
Statement (except as to the financial statements and other
financial and statistical information contained therein or
omitted therefrom, as to which such counsel is not called upon
to express any belief), at the time each part became effective
or on the date of this Agreement, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or
any amendment or supplement thereto on its issue date or on
the Closing Date (except as to the financial statements and
other financial and statistical information contained therein
or omitted therefrom, as to which such counsel is not called
upon to express any belief), contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinion, the Attorney General of the Province, the
Deputy Attorney General of the Province, Assistant Deputy Attorney General,
Legal Services Branch, Ministry of Attorney General of the Province, or other
officer of the Ministry of Attorney General of the Province satisfactory to the
Underwriters, as the case may be, may rely upon the opinion of Xxxxxxxx &
Sterling, United States counsel to the Province, as to matters of United States
law and procedure, and no opinion need be expressed as to the financial
statements and other financial and statistical information contained in or
omitted from the Registration Statement and Prospectus.
(4) The Representatives shall have received an opinion of
Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxx, Canadian counsel to the Underwriters,
given in respect of the laws of British Columbia and Canada, dated the
Closing
11
Date, as to the matters specified in subdivisions (i) through (viii) of
paragraph (c) of this Section 8, subject to such qualifications and
based on such assumptions as are customary in British Columbia in
respect of an opinion of this type. In rendering such opinion, Xxxxxx,
Xxxxxxx, Xxxxx & Xxxxxx may rely upon the opinion of Xxxxx Xxxx &
Xxxxxxxx as to matters of United States law and procedure, and may also
rely upon a certificate (which may be unaudited) of the Deputy Minister
of Finance of the Province or another officer of the Ministry of
Finance of the Province satisfactory to the Representatives as to the
securities of the Province and the borrowings outstanding on the
Closing Date. The opinion shall state in effect that on the basis of an
independent examination of such records, certificates and other
documents and such questions of law as Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxx
have deemed necessary or appropriate, the opinion of the Attorney
General, the Deputy Attorney General, the Assistant Deputy Attorney
General, Legal Services Branch, Ministry of Attorney General of the
Province or another officer of the Ministry of Attorney General of the
Province satisfactory to the Underwriters, as the case may be, Canadian
counsel to the Province, is in form and substance satisfactory to them
and they believe that the Representatives are justified in relying
thereon.
(5) The Representatives shall have received the opinion of
Xxxxxxxx & Xxxxxxxx, United States counsel for the Province, dated the
Closing Date, to the effect that:
(a) The Securities are exempted securities under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), and no qualification of an indenture in respect of the
Securities under the Trust Indenture Act is required for the
issuance, sale and delivery of the Securities.
(b) The statements in the Prospectus under
"Description of Bonds" and "Underwriting", insofar as such
statements constitute a summary of the legal matters or
documents referred to therein, fairly present the information
called for with respect to such legal matters or documents.
(c) The statements in the Prospectus under
"Description of Debt Securities and Warrants -- United States
Income Tax Considerations", as supplemented by "Tax Matters --
United States Federal Income Taxation", to the extent that
they constitute
12
matters of law or legal conclusions, fairly present the
information disclosed therein in all material respects.
(d) Based upon such counsel's participation in
conferences with representatives of the Province, counsel for
the Province and their examination of specified documents, no
facts have come to such counsel's attention which lead such
counsel to believe that (a) the Registration Statement (other
than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to
which such counsel has not been requested to comment, at the
time each part became effective, contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; or (b) that the Prospectus
(other than the financial statements or other financial or
statistical data contained therein or omitted therefrom, as to
which such counsel has not been requested to comment), as of
its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and, in such counsel's opinion, the Registration
Statement and the Prospectus (other than the financial
statements and other financial or statistical data contained
therein or omitted therefrom, as to which such counsel has not
been requested to comment) appear on their face to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder.
In rendering such opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinion
of counsel named in paragraph (c) of this Section 8 as to matters of British
Columbian and Canadian law and procedure.
(6) The Representatives shall have received an opinion of
Xxxxx Xxxx & Xxxxxxxx, United States counsel for the Underwriters,
dated the Closing Date, as to the matters specified in subdivisions
(i), (ii) and (iv) of paragraph (e) of this Section 8, subject to such
qualifications and based upon such assumptions as are customary in the
United States in respect of such opinions. In considering such opinion,
Xxxxx Xxxx & Xxxxxxxx may rely on the opinion of counsel named in
paragraph (d) of this Section 8 as to matters of British Columbian and
Canadian law and procedure.
13
(7) The Representatives shall have received a certificate of
the Minister of Finance of the Province, the Deputy Minister of Finance
of the Province or another officer of the Ministry of Finance of the
Province satisfactory to the Representatives, dated the Closing Date,
in which such Minister, Deputy Minister or other officer, as the case
may be, to the best of his or her knowledge after reasonable
investigation, shall state that the representations and warranties of
the Province in this Agreement are true and correct, that the Province
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Date, that
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission.
(8) The purchase and sale of the Securities in accordance
with the provisions hereof shall not be prohibited by any statute,
order, rule or regulation promulgated by any legislative, executive or
regulatory body or authority of Canada, the United States of America,
the Province or the State of New York.
(9) The Province shall have furnished to the Representatives
and to counsel for the Underwriters such further certificates and
documents as the Representatives and such counsel reasonably request.
(10) Subsequent to the execution of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any placing on credit watch with negative
implications, in the ratings accorded the debt securities of the
Province by any nationally recognized statistical rating agency in the
United States.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to the Representatives. The Province will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as the
Representatives reasonably request.
If any of the above conditions shall not have been fulfilled, this
Agreement and all obligations of the Underwriters hereunder may be terminated
with respect to Securities at, or at any time prior to, the Closing Date by the
Representatives on behalf of the Underwriters, without any liability on the part
of any Underwriter to the Province or of the Province to any Underwriter, except
as provided in Section 6,
14
Section 9 and Section 12 hereof. Notice of such cancellation shall be given as
soon as practicable in accordance with Section 13 of this Agreement.
ix). INDEMNIFICATION. (1) The Province will indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act or the Exchange Act against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
(as amended by the Prospectus) relating to the Securities or any amendment
thereof, including all documents incorporated by reference, or in any
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; and will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that (i) the Province will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with written
information furnished to the Province by any Underwriter through the
Representatives specifically for use therein and (ii) such indemnity with
respect to the Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the confirmation of the
sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in the Prospectus was corrected in the Prospectus as
amended or supplemented. The indemnity in this Section 9(a) will be in addition
to any liability which the Province may otherwise have.
(2) Each Underwriter will indemnify and hold harmless the
Province and the duly authorized representatives in the United States
of the Province who have signed the Registration Statement, against any
losses, claims, damages or liabilities to which the Province or its
duly authorized representatives may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or
15
actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement (as amended by the Prospectus)
relating to the Securities or any amendment thereof, including all
documents incorporated by reference, or in any preliminary prospectus
or the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Province by such
Underwriter through the Representatives specifically for use therein;
and will reimburse any legal or other expenses reasonably incurred by
the Province or its duly authorized representatives in connection with
investigating or defending any such loss, claim, damage, liability or
action or (ii) a breach by such Underwriter of any representation, or
failure to perform or observe any agreement, contained in Section 7 of
this Agreement. The indemnity in this Section 9(b) will be in addition
to any liability which such Underwriter may otherwise have. The
Province acknowledges, for the purposes of this clause (i) above, that
the statements under the heading "Underwriting" (except for the
statements in the paragraphs relating to the FSMA, the Securities and
Exchange Law of Japan and the securities laws of Hong Kong, the
sentence relating to stamp taxes and other charges and the sentence
relating to the estimated expenses of the Province) in any preliminary
prospectus or in the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any of the documents referred to in the foregoing
indemnity, and the Underwriters confirm that such statements are
correct.
(3) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 9. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and
16
the payment of all reasonable fees and expenses as they are incurred;
PROVIDED, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 9 for any legal or other expenses, subsequently incurred
by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Representatives in the
case of subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii). The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if it
be a final judgment for the plaintiff the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 90
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement.
17
(4) If recovery is not available under the foregoing
indemnification provisions of this Section, for any reason other than
as specified therein, the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and
expenses, except to the extent that contribution is not permitted under
Section 11(f) of the Securities Act. In determining the amount of
contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by each party from the
offering of the Securities (taking into account the portion of the
proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent
any statement or omission, and any other equitable considerations
appropriate under the circumstances. The Province and the Underwriters
agree that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the total
public offering price of the Securities purchased by such Underwriter
under this Agreement in the offering to which the asserted claim
relates, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been required to
pay in respect of the same claim or any substantially similar claim.
The Underwriters' obligations to contribute are several in proportion
to their respective underwriting obligations and not joint.
x). DEFAULT OF UNDERWRITERS. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obliged severally to take up and
pay for (in proportion to their respective commitments hereunder) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase;
PROVIDED, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities, and arrangements satisfactory
to the remaining Underwriters and the Province for the purchase of such
Securities are not made within 48 hours after such default, this Agreement will
terminate without liability to any non-defaulting Underwriter or the Province,
except as provided in Section 12. In the event of a default by any Underwriter
as set forth in this Section 10, which shall not cause this Agreement to be
terminated, either the Province or the Representatives shall have the right to
postpone the Closing
18
Date for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected. As
used in this Agreement, the term "UNDERWRITER" includes any person substituted
for an Underwriter under this Section. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Province and
any non-defaulting Underwriter for damages occasioned by its default hereunder.
xi). STABILIZATION AND OVER-ALLOTMENT. Any over-allotment or
stabilization transaction by the Underwriters in connection with the
distribution of the Securities shall be effected by them on their own behalf and
not as agents of the Province, and any gain or loss arising therefrom shall be
for their own account. The Underwriters acknowledge that the Province has not
been authorized to issue Securities in excess of the principal amount set forth
in Schedule I hereto. The Underwriters also acknowledge that the Province has
not authorized the carrying out by the Underwriters of stabilization
transactions other than in conformity with applicable rules, including those
made pursuant to the FSMA and Regulation M promulgated by the Commission (if
applicable). The Province acknowledges that it is aware of the provisions of the
FSMA that are applicable to stabilization transactions.
xii). SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Province and their representatives and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Province or any of
their representatives, and will survive delivery of and payment for the
Securities. If this Agreement is terminated pursuant to Section 10 or if for any
reason the purchase of the Securities by the Underwriters is not consummated,
the Province shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 6 and the obligations of the Province and the
Underwriters pursuant to Section 9 shall remain in effect. In addition, if this
Agreement shall be terminated by the Province on the grounds specified in
Section 15 or by Underwriters on the grounds specified in Section 8 or because
of any failure or refusal on the part of the Province to comply with the terms
or to fulfill any of the conditions of this Agreement, the Province will
reimburse the Underwriters severally for all their out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by them;
PROVIDED, HOWEVER, that the amount the Province shall be required to reimburse
the Underwriters will in no event exceed the aggregate of U.S. $90,000.
19
xiii). NOTICES. All communications hereunder will be in writing, and,
if sent to the Underwriters will be mailed, delivered or telefaxed and confirmed
to the Representatives at the address or using the telefax number set forth in
Schedule I hereto, or, if sent to the Province will be mailed, delivered or
telefaxed and confirmed to the Ministry of Finance, Provincial Treasury, Debt
Management Branch, P.O. Box 9423 Stn. Prov. Govt. 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0 (telefax number: (000) 000-0000, or such other
telefax number as may from time to time be specified in writing by the Province
to the Representatives); provided, however, that any notice to an Underwriter
pursuant to Section 9 will be mailed, delivered or telefaxed to such Underwriter
at its address set forth in Schedule II hereto.
xiv). SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and
representatives referred to in Section 9, and no other person will have any
right or obligation hereunder.
xv). TERMINATION. The obligations under this Agreement may be
terminated by the Representatives or the Province, in their absolute discretion,
by notice given to the Province or the Representatives, as the case may be,
prior to delivery of and payment for the Securities, if during the period
beginning on the date hereof to and including the Closing Date, (a) trading in
securities generally on the New York Stock Exchange or on any stock exchange on
which any debt securities of the Province are listed shall have been suspended
or materially limited, or minimum prices are established, (b) a general banking
moratorium is declared in either the United States or Canada, or (c) there shall
have occurred in the reasonable opinion of the Province or the Representatives,
as the case may be, (i) such a material change in general economic, political or
financial conditions or (ii) such a material change resulting from the effect of
international conditions on the financial markets in the United States or Canada
shall be such, as to make it impracticable to market the Securities in the
manner contemplated by the Prospectus.
xvi). BUSINESS DAY. As used in this Agreement, the term "BUSINESS
DAY" shall mean a day on which banking institutions in New York are not
authorized or obligated by law or regulation to close.
xvii). DOLLAR FIGURES. All dollar figures herein set forth are in
U.S. dollars, unless otherwise indicated.
20
xviii). GOVERNING LAW. This Agreement will be governed by, and
interpreted in accordance with the laws of the Province of British Columbia and
the laws of Canada applicable therein.
xix). HEADINGS. The headings for the sections of this Agreement are
for convenience only and are not part of this Agreement.
xx). COUNTERPARTS. This Agreement may be signed in two or more
counterparts and a counterpart may be delivered by facsimile transmission and
each such counterpart shall be deemed an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Province and the several
Underwriters in accordance with its terms.
Very truly yours,
PROVINCE OF BRITISH COLUMBIA
By /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Deputy Minister of Finance
The foregoing Underwriting
21
Agreement is hereby confirmed
and accepted as of the
date first above written.
XXXXXX BROTHERS INC.
CIBC WORLD MARKETS plc
By: XXXXXX BROTHERS INC.
By /s/ Xxxxx XxXxxxxxxx
-------------------------------------
Name: Xxxxx XxXxxxxxxx
Title: Managing Director
By: CIBC WORLD MARKETS plc
By /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Executive Director
Debt Capital Markets
Acting on behalf of themselves
and as the Representatives
of the several Underwriters.
22
SCHEDULE I
The issue will have the following terms:
Title of Securities: 4.30% Bonds, Series BCUSG-3, Due May 30, 2013
Fiscal Agency Agreement: Fiscal Agency Agreement dated as
of April 29, 2003 between the Province of British
Columbia and The Bank of New York, as fiscal
agent, registrar, transfer agent and principal
paying agent.
Aggregate Principal Amount: U.S. $500,000,000
Maturity: May 30, 2013
Interest Rate: 4.30% per annum
Interest Accrual Date: Interest on the Securities will accrue from and
including April 29, 2003.
Interest Payment Dates: November 30 and May 30, commencing November 30,
2003.
Redemption Provisions: The Securities will not be redeemable prior to
maturity unless certain events occur involving
Canadian taxation.
Price to Public: 99.478% (subject to change of public offering
terms by the Representatives of the Underwriters),
plus accrued interest from April 29, 2003 if
settlement occurs after that date.
Purchase Price by
Underwriters: 99.208% of the principal amount of the Securities
(severally in the respective principal amounts set
forth in Schedule II), plus accrued interest from
April 29, 2003 if settlement occurs after that
date.
Closing Date and Payment: 10 A.M., Toronto time, on April 29, 2003, with
payment in immediately available funds.
Place of Closing: Concurrently at the offices of Shearman &
Sterling, 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx and the
Ministry of Finance, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx.
Other Terms: Principal of and interest on the Securities will
be payable without withholding or deduction for
Canadian withholding taxes to the extent
described in the Prospectus.
Notices to the Underwriters: Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets,
Financial Institutions Group
with a copy to: General Counsel at
the same address
and
CIBC World Markets plc
Cottons Centre
Cottons Lane
London SE1 2QL
Attn: Origination & Syndication
Debt Capital Markets
2
SCHEDULE II
PRINCIPAL AMOUNT
UNDERWRITERS ADDRESS OF SECURITIES
------------ ------- -------------
Xxxxxx Brothers Inc. 000 Xxxxxxx Xxxxxx X.X. $165,000,000
New York, New York 10019
CIBC World Markets plc Cottons Centre 165,000,000
Cottons Lane
London SE1 2QL
Credit Suisse First Boston LLC 00 Xxxxxxx Xxxxxx 00,000,000
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx 4 World Financial Center 45,000,000
Incorporated 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx 20,000,000
New York, NY 10013
Deutsche Bank Securities Inc. 00 Xxxx 00xx Xxxxxx 20,000,000
New York, NY 10019
National Bank Financial Inc. 0000 Xxxxxxxx Xxxxxx 00,000,000
Montreal, Quebec H3B 4S9
Casgrain & Company (USA) Limited 000 Xxxx Xxxxxxxx Xxxx. West 5,000,000
Suite 0000 Xxxxxxxx, Xxxxxx
X0X 0X0
RBC Dominion Securities Corporation Xxx Xxxxxxx Xxxxx 5,000,000
000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Scotia Capital (USA) Inc. 00 Xxxx Xxxxxx Xxxx 0,000,000
Box 4058, Station "A"
Scotia Plaza
Toronto, Ontario M5W 2X6
The Toronto-Dominion Bank Triton Court 5,000,000
00-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Total . . . . . . . . U.S. $500,000,000
============
IV OPINION OF ASSISTANT DEPUTY ATTORNEY GENERAL,
LEGAL SERVICES BRANCH, MINISTRY OF ATTORNEY GENERAL
CONFORMED COPY
April 29, 2003
Xxxxxx Brothers Inc. Minister of Finance
CIBC World Markets plc Parliament Buildings
as representatives (the "Representatives") Victoria, British Columbia
of the several Underwriters (as defined below) Canada V8V 1X4
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
RE: ISSUE BY THE PROVINCE OF BRITISH COLUMBIA (THE "PROVINCE") OF U.S.
$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 4.30% BONDS, SERIES
BCUSG-3, DUE MAY 30, 2013 (THE "BONDS")
We have acted as counsel for the Province in connection with the issue and sale
of the Bonds by the Province pursuant to an underwriting agreement dated April
22, 2003 (the "Underwriting Agreement") between the Province and the
Representatives, as representatives of the several underwriters (the
"Underwriters") listed in Schedule II to the Underwriting Agreement.
For the purposes of this opinion, we have examined the following:
(a) a facsimile copy of the Underwriting Agreement;
(b) copies of Registration Statement No. 333-82846 and
Registration Statement No. 333-10300, each filed with the
Securities and Exchange Commission (collectively, the
"Registration Statement");
(c) the Prospectus of the Province dated February 20, 2002 (the
"Basic Prospectus"), as supplemented by the Prospectus
Supplement dated April 22, 2003 relating to the offering of
the Bonds (the "Prospectus Supplement") (the Basic
Prospectus, as supplemented by the Prospectus Supplement, is
herein referred to as the "Prospectus");
(d) a facsimile copy of a fiscal agency agreement dated as of
April 29, 2003 (the "Fiscal Agency Agreement") between the
Province and The Bank of New York, as fiscal agent,
registrar, transfer agent and principal paying agent (the
"Fiscal Agent");
(e) a certificate dated April 29, 2003 signed by the Executive
Director, Debt Management Branch, Provincial Treasury,
Ministry of Finance, as to the amendments to, and the full
force and effect of, the FINANCIAL
2
ADMINISTRATION ACT, RSBC 1996, c. 138, updated to July 16,
2002, as amended by statutory provisions in force and effect
and contained in
(i) sections 6 and 7 of the TRUSTEE INVESTMENT
STATUTES AMENDMENT ACT, 2002, SBC 2002, c. 33,
(ii) sections 30 to 32 of the AUDITOR GENERAL ACT, SBC
2003, c. 2,
(iii) sections 10 and 11 of the BUDGET MEASURES
IMPLEMENTATION ACT, 2003, SBC 2003, c. 3, and
(iv) section 81 of the COASTAL FERRY ACT, SBC 2003,
c. 14
(together, the "FAA");
(f) a copy of Order in Council No. 774 of the Lieutenant
Governor in Council of the Province of British Columbia,
approved and ordered on August 16, 2001 (the "Authorizing
Order"), certified to our satisfaction;
(g) a certificate dated April 29, 2003 signed by the Deputy
Minister of Finance as to
(i) any amendments to and the full force and effect of
the FAA and the Authorizing Order,
(ii) the borrowings pursuant to the Authorizing Order,
(iii) the appointment and qualification of certain
officers of the Province and verification of their
genuine signatures,
(iv) the existence of necessary approvals for the
indemnities by the Province in the Underwriting
Agreement and the Fiscal Agency Agreement,
(v) the determination of the terms and conditions of
the Bonds, and
(vi) the appointment of the Fiscal Agent;
(h) a certificate dated April 29, 2003 signed by the Deputy
Minister of Finance as to those matters referred to in
section 8(b) and (g) of the Underwriting Agreement;
(i) a letter dated April 25, 2003 from the Province addressed to
the Fiscal Agent providing instructions to the Fiscal Agent
as to authentication, registration and delivery of the
Bonds;
3
(j) a facsimile copy of a certificate dated April 29, 2003
executed on behalf of the Fiscal Agent as to the
authorization of the Fiscal Agent to enter into and act
under the Fiscal Agency Agreement and appointing persons
authorized to execute documents and authenticate the Bonds
on its behalf;
(k) a facsimile copy of a global bond certificate representing
the Bonds, bearing number 0001 in the principal amount of
U.S. $500,000,000, registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC"), in the form
attached as Exhibit 1 to the Fiscal Agency Agreement (the
"Global Bond"), signed and countersigned by persons
authorized to do so under the FAA and the Authorizing Order,
and authenticated by an authorized signatory of the Fiscal
Agent; and
(l) such other documents and matters of law as we have
considered necessary or appropriate for the purposes of this
opinion.
In such examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as photostatic, facsimile or
certified copies.
For the purposes of this opinion, we have assumed that the Underwriting
Agreement and the Fiscal Agency Agreement are within the capacities and powers
of and have been validly authorized, executed and delivered by the parties to
those agreements other than the Province and that those other parties have
obtained any regulatory approvals applicable to them.
This opinion is limited to matters of British Columbia and Canadian law. To the
extent that United States law and procedure is applicable to the matters stated
herein, we have relied upon the opinion of Xxxxxxxx & Xxxxxxxx. We express no
opinion as to the financial statements and other financial and statistical
information contained in the Registration Statement and Prospectus.
Based and relying on the foregoing and subject to the qualifications set forth
herein, we are of the opinion that under the laws of British Columbia and
Canada:
1. The Province has full power and authority to execute and deliver the
Underwriting Agreement and to issue and sell the Bonds.
2. The Underwriting Agreement and the Fiscal Agency Agreement have been
duly authorized, executed and delivered by the Province and each is a
valid and legally binding agreement of the Province, except as rights
to indemnity and contribution thereunder may be limited under
applicable law.
4
3. The Global Bond has been duly authorized, executed and issued by the
Province and duly authenticated by the Fiscal Agent in accordance with
the provisions of the Underwriting Agreement and the Fiscal Agency
Agreement and in accordance with the laws of British Columbia and
Canada and the Authorizing Order. Upon the Global Bond having been
delivered to DTC in accordance with the Fiscal Agency Agreement and
payment for the Bonds having been made to the Province in accordance
with the Underwriting Agreement, the Global Bond will constitute a
valid, legally binding, direct and unconditional general obligation of
the Province in accordance with its terms and will rank equally and
ratably with other unsecured securities constituting general
obligations of the Province outstanding on the date of issue of the
Bonds.
4. All authorizations, approvals, consents, orders and waivers required
under the laws of British Columbia and Canada to permit the execution
and delivery of the Underwriting Agreement and the Fiscal Agency
Agreement, the issuance of the Bonds and the performance by the
Province of its obligations thereunder have been obtained and are in
full force and effect.
5. Proceedings may be brought against the Province in the Supreme Court of
British Columbia and no applicable law requires the consent of any
public official or authority for proceedings to be brought or judgment
to be obtained against the Province arising out of or relating to
obligations under the Bonds, nor is any immunity from jurisdiction
available to the Province in any proceedings in the Supreme Court of
British Columbia brought in accordance with the CROWN PROCEEDING ACT
(British Columbia) and within applicable limitation periods, whether or
not a party to the proceedings or the holder of a Bond is resident
within British Columbia or is a citizen of Canada.
6. The statements in the Prospectus under the captions "Description of
Bonds" and "Underwriting", insofar as such statements constitute a
summary of the legal matters or documents referred to therein, are
accurate in all material respects, subject to the qualifications stated
therein.
7. We are of the opinion ascribed to us in the Prospectus Supplement under
the caption "Tax Matters--Canadian Taxation", subject to the exceptions
and qualifications stated therein.
8. Although we are not passing upon and assume no responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, as amended or supplemented,
based upon our participation in conferences with representatives of
the Province at which the contents of the Registration Statement and
the Prospectus and related matters were discussed, no facts have come
to our attention which lead us to believe that the Registration
Statement (except as to the financial statements and other financial
and statistical information contained therein or
5
omitted therefrom, as to which we do not express any opinion), at the
time each part became effective or on the date of the Underwriting
Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or
any amendment or supplement thereto on its issue date or on the date
hereof (except as to the financial statements and other financial and
statistical information contained therein or omitted therefrom, as to
which we do not express any opinion), contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
This opinion is subject to the following qualifications:
(i) claims under the Underwriting Agreement, the Fiscal Agency
Agreement or the Bonds may become barred under the LIMITATION
ACT (British Columbia) or may be or become subject to defences
of set-off or counterclaim;
(ii) the enforceability of any particular provision of the
Underwriting Agreement, the Fiscal Agency Agreement or the
Bonds is subject to general principles of equity;
(iii) the remedies of injunction and specific performance are not
available against the Province under the CROWN PROCEEDING ACT
(British Columbia);
(iv) determinations, certificates, notifications, opinions,
calculations or requests made by the Province, the
Underwriters or the Fiscal Agent under the Underwriting
Agreement, the Fiscal Agency Agreement, or the Bonds, as the
case may be, pursuant to any discretion therein conferred may
not be enforceable or conclusive if shown to have an
unreasonable or arbitrary basis or if there is manifest error;
(v) an order obtained in proceedings against the Province in the
Supreme Court of British Columbia may not, by virtue of the
CROWN PROCEEDING ACT (British Columbia), be enforced by
execution, attachment or process of that nature, but the
CROWN PROCEEDING ACT (British Columbia) does provide that if
such an order for the payment of money is made, the proper
officer of the court must, on application, issue a
certificate stating the amount payable, and the Minister of
Finance must (subject to the court or an appellate court
directing that payment be suspended pending an appeal or
otherwise) pay out of the Consolidated Revenue Fund of
British Columbia to the person entitled, or to that person's
order, the amount appearing by the certificate to be due,
together with the interest, if any, lawfully due;
6
(vi) where obligations are to be performed in a jurisdiction
outside British Columbia, they may not be enforceable in
British Columbia to the extent that performance would be
illegal under the laws of the other jurisdiction;
(vii) a British Columbia court will not ordinarily enforce a foreign
judgment which is not final and conclusive, which is found to
have been obtained by fraud or in a manner contrary to natural
justice, which relates to a matter previously adjudicated by a
British Columbia court or involving the enforcement of foreign
penal or revenue laws, which is rendered by a foreign court
which the British Columbia court does not recognize as having
jurisdiction over the party against whom judgment was
rendered, or where the enforcement is otherwise found to be
contrary to public policy;
(viii) an award of costs of litigation brought before a British
Columbia court is in the discretion of the court
notwithstanding any contrary provisions contained in any
agreement;
(ix) the CURRENCY ACT (Canada) precludes a court in Canada from
giving a judgment in any currency other than Canadian
currency, but Section 7(e) of the Fiscal Agency Agreement
contains an indemnity by the Province applicable to any loss
or damage which arises out of the payment in Canadian currency
pursuant to the judgment of a court, of an amount which under
the Fiscal Agency Agreement or the Bonds is expressed to be
payable in a currency other than Canadian currency; and
(x) the FOREIGN MONEY CLAIMS ACT (British Columbia) provides
that if a court considers that a person in whose favour an
order for the payment of money is to be made will be most
truly and exactly compensated if all or part of the money
payable under the order is measured in a currency other than
Canadian currency, the court shall order that the money
payable under the order will be that amount of Canadian
currency that is necessary to purchase the equivalent amount
of the other currency at a chartered bank in British
Columbia at the close of business on the conversion date.
The Act defines conversion date, in effect, as the last day
before the day on which a payment under the order is made
that the relevant chartered bank quotes a Canadian dollar
equivalent to the other currency. The Act and the Foreign
Money Claims Regulation made under it also provide, in
effect, that, subject to the discretion of the court,
interest payable after the date of an order to which the Act
applies shall accrue at the applicable foreign prime rate
(as described in the Regulation) until payment.
This opinion is rendered solely to you in connection with this issue of Bonds.
This opinion may not be relied upon by you for any other purpose or relied upon
by or
7
furnished to any other person without our prior written consent, except that
Xxxxxxxx & Xxxxxxxx and the Fiscal Agent are entitled to rely on this opinion
as if it were addressed to them.
We consent to the inclusion of this opinion in a Form 18-K/A amendment to the
Province's Annual Report on Form 18-K for the year ended March 31, 2001, which
Annual Report is incorporated by reference into Registration Statement No.
333-82846 filed with the Securities and Exchange Commission of the United States
of America.
Yours very truly,
/s/ Xxxxxx X.X. Xxxxxx
Xxxxxx X. X. Xxxxxx
Assistant Deputy Attorney General
Legal Services Branch
Ministry of Attorney General
Province of British Columbia
V SCHEDULE OF EXPENSES
V. SCHEDULE OF EXPENSES
It is estimated that the expenses of the Province of British Columbia
in connection with the sale of the Bonds will be as follows:
Securities and Exchange Commission fee...................... U.S. $122,459.00
Printing expenses........................................... 4,500.00
Fiscal Agent fees and expenses.............................. 3,000.00
Legal fees and expenses..................................... 30,000.00
Luxembourg Agent fees and expenses.......................... 3,000.00
Underwriters' expense reimbursement......................... 90,000.00
----------------
TOTAL....................................................... U.S. $252,959.00
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