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EXHIBIT 4.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE
FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
ECHO BAY MINES LTD.
11% Capital Securities due 2027
No. G-1 U.S. $100,000,000
CUSIP No. 278751 AA 0
ECHO BAY MINES LTD., a corporation duly incorporated and existing under
the laws of Canada (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of Xxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxxx Dollars on April 1, 2027,
and to pay interest thereon from March 27, 1997, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on April 1 and October 1 in each year, commencing October 1,
1997, at the rate of 11% per annum, or 12% per annum during an Extension
Period, until the principal hereof is paid or made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 12% per annum on any overdue principal and premium and on any
overdue instalment of interest, from the dates such amounts are due until they
are paid or made available for payment. The interest so payable, and
punctually paid or
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duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Business
Day next preceding such Interest Payment Date. In the event any Securities
shall not be represented by a Global Security, the relevant record dates for
the payment of interest on the next succeeding Interest Payment Date for such
Securities will be the March 15 or September 15 next preceding the relevant
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of principal of (and premium, if any) and interest on this
Security will be made to the Depositary or its nominee, as the case may be, as
the registered owner or Holder of such Global Security, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 27, 1997
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ECHO BAY MINES LTD.
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as
Trustee,
By /s/ Xxxxx Xxxxxxx
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Authorized Signatory
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FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under the Indenture, dated as of March 27, 1997, as supplemented by
the First Supplemental Indenture, dated as of March 27, 1997 (collectively, the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate amount to U.S.
$100,000,000.
Each Security shall bear interest from March 27, 1997, payable in US
dollars, at the rate of 11% per annum, or 12% per annum during an Extension
Period, payable semi-annually in arrears on April 1 and October 1 of each year,
commencing October 1, 1997 (each an "Interest Payment Date") to the person in
whose name such Security is registered, subject to certain exceptions, as of
the close of business on the Business Day next preceding such Interest Payment
Date. In the event any Securities shall not be represented by a Global
Security, the relevant record dates for the payment of interest on the next
succeeding Interest Payment Date for such Securities will be the March 15 or
September 15 next preceding the relevant Interest Payment Date.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full semi-annual period for which
interest is computed will be computed on the basis of the actual number of days
elapsed per 30-day month. Accrued interest that is not paid on the applicable
Interest Payment Date (including during an Extension Period)
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will bear additional interest on the amount thereof (to the extent permitted by
law) at the rate per annum of 12% thereof, compounded semi-annually and
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in a period. The term "interest" as used
herein shall include semi-annual interest payments, interest on semi-annual
interest payments not paid on the applicable Interest Payment Date and
Additional Amounts, as applicable. In the event that any date on which
interest is payable on the Securities is not a Business Day, then payment of
the interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, then such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date.
The Company shall have the right at any time and from time to time,
subject to certain conditions, to defer payments of interest on the Securities
by extending interest payment periods for periods (each, an "Extension
Period"), each not exceeding 10 consecutive semi-annual payment periods (all
interest that shall accrue on the Securities, including, to the extent
permitted by law, interest on interest, during an Extension Period is herein
called "Deferred Interest"); provided that during any Extension Period (i) the
Company shall not declare or pay dividends on, or make a distribution with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to, any of its Capital Stock (other than (a) as a result of an exchange
or conversion of any class or series of the Company's Capital Stock or rights
to acquire such stock for any other class or series of the Company's Capital
Stock or rights to acquire such stock, (b) the purchase of fractional interests
in shares of the Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted or exchanged,
(c) dividends or distributions made on the Company's Capital Stock or rights to
acquire such stock with the Company's Capital Stock or rights to acquire such
stock or (d) purchases of Common Shares related to the issuance of Common
Shares or rights or options under any of the Company's benefit plans for its
directors, officers, employees or other persons within the
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definition of "employee" under any employee benefit plan of the Company, or
related to the issuance of Common Shares or rights under a dividend
reinvestment plan or stock purchase plan), and (ii) the Company shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities (excluding, for the avoidance of doubt, Senior
Indebtedness, current payables, accrued liabilities, provisions for
reclamation, mine closure and waste rock removal, and income and mining taxes
payable, in respect of which such payments, repayments, repurchase and
redemptions may be made) issued by the Company or any guarantee issued by the
Company that, in either case, rank pari passu with or junior to the Securities.
Prior to the termination of any Extension Period, the Company may further defer
payments of interest by extending the interest payment period on the
Securities; provided, however, that such further Extension Period, including
all such previous and further extensions, may not exceed 10 consecutive semi-
annual payment periods and may not extend beyond the maturity of the
Securities. Upon the termination of any Extension Period and the payment of
all Deferred Interest, the Company may commence a new Extension Period for up
to 10 consecutive semi-annual payment periods, subject to the terms set forth
in the Indenture. During an Extension Period, interest on the Securities will
accrue at the rate of 12% per annum, compounded semi-annually, and holders of
Securities will be required to accrue interest income for United States Federal
income tax purposes prior to receipt of cash related to such interest income.
All interest accrued during an Extension Period shall be paid on the Interest
Payment Date at the end of such Extension Period. No interest payments will be
required to be made during an Extension Period except at the end thereof.
The Company shall give the holders of the Securities written notice of
its initiation of any Extension Period at least ten Business Days prior to the
earlier of (i) the next Interest Payment Date or (ii) the date upon which the
Company is required to give notice to holders of the Securities of the record
date or Interest Payment Date, in each such case with respect to interest
payments the payment of which is being deferred.
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The Company may elect, from time to time, to satisfy its obligation to
pay any Deferred Interest on any Interest Payment Date by delivering Common
Shares in accordance with the provisions of the Indenture (the "Common Shares
Payment Election"). The Trustee shall in accordance with detailed written
procedures set forth in the Common Shares Election Notice (i) accept delivery
of Common Shares from the Company, (ii) accept bids with respect to, and
consummate sales of, such Common Shares, each as the Company shall direct in
its absolute discretion, (iii) invest the proceeds of such sales in short-term
United States Government Obligations, which mature prior to the applicable
Interest Payment Date, and/or use such proceeds to pay the Deferred Interest,
and (iv) perform any other action necessarily incidental thereto, all as more
fully provided in the Indenture.
Notwithstanding the foregoing, the Company shall not be permitted to
satisfy its obligations to pay Deferred Interest with respect to the Securities
through the delivery of Common Shares if, on the Common Shares Delivery Date,
the Common Shares to be delivered are not then listed on The Toronto Stock
Exchange, the American Stock Exchange or any other significant stock exchange
in Canada or the United States on which the Common Shares are then listed.
Neither the Company's making of a Common Shares Payment Election nor the
consummation of sales of Common Shares on the Common Shares Delivery Date will
(i) result in the holders of the Securities not receiving on the applicable
Interest Payment Date cash in an aggregate amount equal to the Deferred
Interest payable on such Interest Payment Date, or (ii) entitle such holders to
receive any Common Shares in satisfaction of the Company's obligation to pay
such Deferred Interest.
The Securities are redeemable prior to their maturity at the option of
the Company on or after April 1, 2007 in whole at any time or in part from time
to time, at the following prices expressed in percentages of the principal
amount, together with accrued and unpaid interest thereon (including any
Deferred Interest) up to but excluding the Redemption Date,
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if redeemed during the 12-month period beginning on April 1 of the years
indicated below:
Redemption
Year Price
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2007 105.5%
2008 104.4
2009 103.3
2010 102.2
2011 101.1
and at 100% on or after April 1, 2012.
At any time on or after April 1, 2002, and prior to April 1, 2007, the
Company may use the Net Cash Proceeds from one or more Cash Equity Sales of the
Company to redeem either (i) up to 40% of the aggregate original principal
amount of the Securities or (ii) 100% of the aggregate principal amount of the
Securities then Outstanding at the following prices expressed in percentages of
the principal amount, together with accrued and unpaid interest thereon
(including any Deferred Interest) up to but excluding the Redemption Date, if
redeemed during the 12-month period beginning on April 1 of the years indicated
below:
Redemption
Year Price
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2002 105.5%
2003 104.5
2004 103.5
2005 102.5
2006 101.5
Prior to April 1, 2007, the Securities will be redeemable by the
Company, in whole or in part, at any time and from time to time, at an
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amount equal to the Make-Whole Amount, plus accrued and unpaid interest thereon
(including any Deferred Interest) to the Redemption Date.
The Securities may be redeemed, at the option of the Company, at any
time in whole but not in part, on not less than 30 days and not more than 60
days prior written notice, at 100% of the principal amount of the Securities
plus accrued and unpaid interest thereon (including any Deferred Interest) on
the date of such redemption, on or after the 91st day following the occurrence
and during the continuance of a Redemption Tax Event if within the 90-day
period following such Redemption Tax Event, the Company is unable to avoid the
adverse effects of such Redemption Tax Event by taking some Ministerial Action
or pursuing some other reasonable measure that will have no adverse effect on
the Company or the holder of the Securities.
The Securities are not entitled to the benefits of any sinking fund.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries to, among other things, Incur additional Debt
and pay dividends or make certain other restricted payments, all as more fully
provided in the Indenture. The limitations are subject to a
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number of important qualifications and exceptions. The Company must report
annually to the Trustee on compliance with such limitations.
The Indenture contains provisions for defeasance at any time of (1) the
entire indebtedness of this Security or (2) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. The occurrence of a Change of Control will constitute an Event of
Default under the Indenture if the Company does not cure such event by making
an offer to repurchase all of the outstanding Securities at a repurchase price
equal to 101% of the aggregate principal amount of such Securities plus accrued
and unpaid interest thereon (including any Deferred Interest) to the repurchase
date.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of this series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of this series. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of this series at the time Outstanding, on behalf of the Holders of
Securities of such series, to waive compliance by the Company with certain past
provisions of the Indenture and certain defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
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As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No other reference herein to the Indenture and no other provision of
this Security or of the Indenture shall alter or impair the obligations of the
Company, which are unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin and
currency, as prescribed herein and in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
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The Securities of this series are issuable only in registered form
without coupons in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company, may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.