Order pursuant to subsection 46(4) of the Business Corporations Act (Ontario) - trust indenture to be governed by the United States Trust Indenture Act of 1939 , as amended, in connection with a proposed public offering of debt securities of an issuer in the United States and Canada - trustee to be appointed under the trust indenture has filed with the Commission and on SEDAR a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Ontario - any pricing supplement or prospectus supplement under which the debt securities will be offered in Ontario will include disclosure about the existence of this order and a statement regarding the risks associated with the purchase of debt securities of the issuer under the trust indenture by a holder in Ontario as a result of the absence of a local trustee appointed under the trust indenture - trust indenture exempted from the requirements of Part V of the Business Corporations Act (Ontario).
Business Corporations Act, R.S.O. 1990, c. B-16, as amended, ss. 46(2), 46(3), 46(4), Part V.
Securities Act, R.S.O. 1990, c. S.5, as amended.
Trust Indenture Act of 1939, 53 Stat. 1149 (1939), 15 U.S.C., ss. 77aaa - 77bbb, as amended.
May 15, 2009
IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT,
R.S.O. 1990, c. B.16, AS AMENDED
IN THE MATTER OF
WELLS FARGO BANK, NATIONAL ASSOCIATION
AND KINROSS GOLD CORPORATION
(Subsection 46(4) of the OBCA)
UPON the application of Wells Fargo Bank, National Association (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 46(4) of the OBCA exempting a trust indenture (the "Indenture") to be entered into between Kinross Gold Corporation ("Kinross") and the Applicant from the requirements of Part V of the OBCA;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON it being represented by Kinross and the Applicant to the Commission that:
1. The Applicant is a financial institution organized under the laws of South Dakota and is neither resident nor authorized to do business in Ontario.
2. The Applicant will be the trustee under the Indenture to be entered into between Kinross and the Applicant.
3. Kinross is a corporation existing under the OBCA. Kinross is a reporting issuer under the Securities Act, R.S.O. 1990, c. S.5, as amended (the "Act") and is not in default of any requirement under the Act or the rules and regulations promulgated thereunder. Kinross's head office is located at 52nd Floor, Scotia Plaza, 40 King Street West, Toronto, Ontario, M5H 3Y2.
4. Kinross proposes to issue from time to time debt securities (the "Securities") in Canada under the Indenture.
5. The Indenture will be governed by the laws of the State of New York and the federal laws of the United States applicable therein.
6. A short form base shelf prospectus (the "Canadian Base Shelf Prospectus") will be filed by Kinross with the Commission and with each of the Provinces in Canada pursuant to the applicable requirements of National Instrument 44-101 Short Form Prospectus Distributions and National Instrument 44-102 Shelf Distributions to qualify the distribution of the Securities in the Province of Ontario and in each of the other Provinces of Canada. The Indenture will be filed by Kinross with the Commission in connection with the filing of the Canadian Base Shelf Prospectus.
7. Public offers and sales of the Securities will be made, from time to time, in the United States pursuant to a shelf registration statement on Form F-10 (the "Registration Statement") which will be filed by Kinross with the United States Securities and Exchange Commission (the "SEC"). The Canadian Base Shelf Prospectus referred to in paragraph 6 above will form a part of the Registration Statement.
8. Because the Canadian Base Shelf Prospectus will be filed under the Act, Part V of the OBCA will apply to the Indenture by virtue of subsection 46(2) of the OBCA.
9. As a result of the filing of the Registration Statement with the SEC, the Indenture will be subject to and governed by the provisions of the United States Trust Indenture Act of 1939, as amended (the "TIA"). Upon the receipt of requested exemptions under the OBCA pursuant to the Order, if granted, the Indenture will continue to be subject to the TIA. The Indenture will provide that there shall always be a trustee thereunder that satisfies the requirements of sections 310(a)(1), 310(a)(2) and 310(b) of the TIA and that the terms of such Indenture will be consistent with the requirements of the TIA.
10. Because the TIA regulates trustees and trust indentures of publicly offered debt securities in the United States in a manner that is consistent with Part V of the OBCA, holders of Securities in Ontario will not, subject to paragraph 11, derive any additional material benefit from having the Indenture be subject to Part V of the OBCA.
11. The Applicant has filed with the Commission and on SEDAR a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Ontario (a "Submission to Jurisdiction and Appointment of an Agent for Service of Process").
12. Kinross has advised the Applicant that any pricing supplement or shelf prospectus supplement (a "Supplement") under which Securities will be offered or sold in Canada will disclose the existence of the Order, if granted, and state that the Applicant, its officers and directors, and the assets of the Applicant are located outside of Ontario and, as a result, it may be difficult for a holder of Securities to enforce rights against the Applicant, its officers or directors, or the Applicant's assets and that the holder may have to enforce rights against the Applicant in the United States.
13. It is not currently anticipated that the Securities issued in Canada pursuant to the Indenture will be listed on any stock exchange in Canada, but listing may occur in the future.
AND UPON the Commission being of the opinion that to do so would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to subsection 46(4) of the OBCA, that the Indenture is exempt from Part V of the OBCA, provided that:
(a) the Indenture is governed by and subject to the TIA; and
(b) prior to or concurrently with the filing of any Supplement of Kinross, the Applicant, or any trustee that replaces the Applicant under the terms of the Indenture, has filed with the Commission and on SEDAR a Submission to Jurisdiction and Appointment of Agent for Service of Process.