Securities Law & Instruments

 

Headnote

Order pursuant to subsection 46(4) of the Business Corporations Act (Ontario) – trust indentures to be governed by the United States Trust Indenture Act of 1939, as amended, in connection with a public offering of debt securities of the issuer in the United States and Canada – relief conditional upon the trustee to be appointed under the trust indentures filing 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 – Canadian base shelf prospectus supplement 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 indentures by a holder in Ontario as a result of the absence of a local trustee appointed under the trust indentures – trust indentures exempted from the requirements of Part V of the Business Corporations Act (Ontario).

Applicable Legislative Provisions

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., Secs. 77aaa-77bbb, as amended.

April 7, 2017

IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT,
R.S.O. 1990, CHAPTER B.16, AS AMENDED
(THE "ACT")

AND

IN THE MATTER OF
WILMINGTON TRUST, NATIONAL ASSOCIATION

AND

BARRICK GOLD CORPORATION

ORDER
(Subsection 46(4) of the Act)

UPON the application of Wilmington Trust, National Association (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 46(4) of the Act exempting from the requirements of Part V of the Act a trust indenture to be entered into between Barrick Gold Corporation ("Barrick") and the Applicant in respect of senior debt securities of Barrick and a trust indenture to be entered into between Barrick and the Applicant in respect of subordinated debt securities of Barrick (each, an "Indenture" and, collectively, the "Indentures").

AND UPON considering the application and the recommendation of the staff of the Commission;

AND UPON it being represented by Barrick and the Applicant to the Commission that:

1.             The Applicant is a body corporate incorporated under the laws of the State of Delaware and is neither resident nor authorized to do business as a trust company in Ontario.  The Applicant's Corporate Trust office and principal place of business is 1100 North Market Street, Wilmington, Delaware, 19890.

2.             Barrick is a corporation existing under the Act.  Barrick's head office and principal place of business is Brookfield Place, TD Canada Trust Tower, Suite 3700, 161 Bay Street, P.O. Box 212, Toronto, Ontario, M5J 2S1.  Barrick is a reporting issuer under the Securities Act (Ontario) (the "OSA") and is not in default of any requirement of the OSA and the respective regulations and rules under the OSA together with applicable published policy statements of the Canadian Securities Administrators. Barrick's common shares are listed on the Toronto Stock Exchange and the New York Stock Exchange under the symbol "ABX".

3.             The Applicant will be the sole trustee under each Indenture to be entered into between Barrick and the Applicant.

4.             Barrick filed a final short form base shelf prospectus (the "Prospectus") with the Commission and the securities regulatory authorities in each of the other provinces and territories of Canada on March 3, 2017 pursuant to National Instrument 44-101 – Short Form Prospectus Distributions and National Instrument 44-102 – Shelf Distributions to qualify the distribution of certain securities (the "Securities"), including debt securities ("Debt Securities"), in each of the provinces and territories of Canada.  Public offers and sales of Securities, including Debt Securities, may be made, from time to time, in the United States pursuant to the registration statement on Form F-10 (the "Registration Statement"), which was filed with the United States Securities and Exchange Commission (the "SEC") on February 16, 2017 under the multi-jurisdictional disclosure system, as amended on March 3, 2017 under the first amendment to the Registration Statement ("Amendment No. 1 to the Registration Statement").  The Prospectus forms a part of Amendment No. 1 to the Registration Statement.

5.             Public offers and sales of the Debt Securities issued under each Indenture, if any, are expected to be made in the United States, but may also be made in one or more of the provinces and territories of Canada.

6.             Issuances of Debt Securities, if any, are expected to be made under either Indenture or both Indentures.

7.             Each Indenture is to be governed by the laws of the State of New York and the federal laws of the United States applicable therein.

8.             A form of each Indenture was filed with the SEC as an exhibit to Amendment No. 1 to the Registration Statement.

9.             Following the execution of an Indenture, such Indenture will be filed on the System for Electronic Document Analysis and Retrieval ("SEDAR") in connection with the sale of Debt Securities thereunder.

10.          Pursuant to subsection 46(2) of the Act, Part V of the Act will apply to each Indenture because the Prospectus was filed under the OSA.

11.          As a result of the filing of the Registration Statement with the SEC, each Indenture is also subject to and governed by the provisions of the United States Trust Indenture Act of 1939, as amended (the "TIA").  The TIA requires, and each Indenture provides, that the trustee under an Indenture must satisfy the requirements of sections 310(a)(1), 310(a)(2) and 310(b) of the TIA, including that the trustee thereunder be organized under the laws of the United States, any State thereof or the District of Columbia and be authorized to execute corporate trust powers pursuant to such applicable laws.

12.          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 Act, holders of Debt Securities in Ontario will not, subject to the delivery of a submission to jurisdiction and an appointment of an agent for service of process (“Submission to Jurisdiction and Appointment of Agent for Service of Process”), derive any additional material benefit from having the Indentures be subject to Part V of the Act.

13.          Prior to or concurrently with Barrick's filing of an executed Indenture with the Commission and the filing of any Canadian shelf prospectus supplement under the Prospectus (a "Supplement") in respect of an offering of Debt Securities, the Applicant will file with the Commission and on SEDAR a Submission to Jurisdiction and Appointment of Agent for Service of Process.

14.          Any Supplement under which Debt Securities will be offered or sold in Canada will disclose the existence of the Order, if granted, and state that the Applicant, the assets of the Applicant and, if applicable, all or certain of its officers and directors are located outside of Ontario and, as a result, that it may be difficult for a holder that purchases Debt Securities in Canada to enforce its rights against the Applicant, the Applicant's assets or its officers or directors, and that the holder may have to enforce rights against the Applicant in the United States.

15.          It is not currently anticipated that Debt Securities will be listed on any stock exchange, but listing may occur in the future.

16.          While Barrick has applied for and received exemptive relief under subsection 46(4) of the Act from the Commission in the past, the indenture in respect of which such historical relief was granted is not suitable for use in connection with future issuances of Debt Securities by Barrick as such indenture provided for issuances of debt securities by subsidiaries of Barrick that were guaranteed by Barrick.

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 Act, that each Indenture is exempt from Part V of the Act, provided that:

(a)           each Indenture is governed by and subject to the TIA; and

(b)           prior to or concurrently with Barrick's filing of an executed Indenture with the Commission and the filing of any Supplement in respect of an offering of Debt Securities, the Applicant, or any trustee that replaces the Applicant under the terms of such Indenture, has filed with the Commission and on SEDAR a Submission to Jurisdiction and Appointment of Agent for Service of Process.

“Philip Anisman  "
Commissioner
Ontario Securities Commission
“William J. Furlong”
Commissioner
Ontario Securities Commission