FORM 18-K/A
For Foreign Governments and Political Subdivisions Thereof
__________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
AMENDMENT NO. 9 TO
ANNUAL REPORT
of
PROVINCE OF ONTARIO
(Canada)
(Name of Registrant)
______________________
Date of end of last fiscal year: March 31, 2007
SECURITIES REGISTERED*
(As of the close of the fiscal year)
Title of Issue Amounts as to which Names of exchanges
registration is effective on which registered
________________________________________________________________________________
N/A N/A N/A
________________________________________________________________________________
Name and address of persons authorized to receive notices and
communications from the Securities and Exchange Commission:
Vera Nicholas-Gervais
Head of the Provincial
Territorial and Parliamentary Affairs Section
Canadian Embassy
501 Pennsylvania Avenue N.W.
Washington, D.C. 20001
__________
Copies to:
Christopher J. Cummings
Shearman & Sterling LLP
Commerce Court West, 199 Bay Street
Suite 4405, P.O. Box 247
Toronto, Ontario, Canada M5L IE8
* The Registrant is filing this annual report on a voluntary basis.
PROVINCE OF ONTARIO
In connection with the issuance by the Province of Ontario of
US$1,500,000,000 3.125% Bonds due September 8, 2010, the undersigned registrant
hereby amends its Annual Report on Form 18-K for the fiscal year ended
March 31, 2007 (the "Annual Report") as follows:
The following additional exhibits are added to the Annual Report:
Exhibit (m) Fiscal Agency Agreement, dated as of September 5, 2008, including
the form of Bonds; Underwriting Agreement, dated as of August
28, 2008, including the names and addresses of the
Underwriters; Opinion of the Legal Counsel, Legal Services
Branch, Ministry of Finance of the Province of Ontario,
including a consent relating thereto, in respect of the
legality of the Bonds; and Schedule of Expenses.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,the
registrant has duly caused this amendment to the annual report to be signed on
its behalf by the undersigned, thereunto duly authorized, at Toronto, Ontario.
PROVINCE OF ONTARIO
(Name of registrant)
September 5, 2008 By: /s/ Irene Stich
___________________________________________
Name: Irene Stich
Title: Director, Capital Markets Operations
Capital Markets Division
Ontario Financing Authority
Exhibit Index
Exhibit (m) Fiscal Agency Agreement, dated as of September 5, 2008, including the
form of Bonds; Underwriting Agreement, dated as of August 28, 2008,
including the names and addresses of the Underwriters; Opinion of
the Legal Counsel, Legal Services Branch, Ministry of Finance of
the Province of Ontario, including a consent relating thereto, in
respect of the legality of the Bonds; and Schedule of Expenses.
CONFORMED COPY
PROVINCE OF ONTARIO
US$1,500,000,000
3.125% BONDS DUE SEPTEMBER 8, 2010
_______________________
FISCAL AGENCY AGREEMENT
_______________________
Dated as of September 5, 2008
PROVINCE OF ONTARIO
FISCAL AGENCY AGREEMENT dated as of September 5, 2008, between the Province
of Ontario (the "Province") and The Bank of New York Mellon, a corporation
organized and existing under the laws of the State of New York, as fiscal agent,
transfer agent, registrar and principal paying agent.
1. Underwriting Agreement. The Province entered into an underwriting agreement
dated as of August 28, 2008 (the "Underwriting Agreement") with the several
underwriters listed on Schedule II thereto providing for the issue and sale
by the Province of US$1,500,000,000 aggregate principal amount of 3.125%
Bonds due September 8, 2010 (the "Bonds").
2. Appointment of Registrar; Paying Agents; Additional Transfer Agent. (a) The
Province hereby appoints The Bank of New York Mellon, at present having its
principal office at 101 Barclay Street, New York, New York 10286, in the
Borough of Manhattan, The City and State of New York, as fiscal agent,
transfer agent, registrar and principal paying agent of the Province for
the Bonds, upon the terms and conditions set forth herein. The Bank of New
York Mellon accepts such appointments, and along with its successors as
such fiscal agent, transfer agent, registrar and principal paying agent is
hereinafter referred to as the "Registrar".
(b) The Province may from time to time appoint one or more additional agents
(hereinafter called a "Paying Agent" or the "Paying Agents") for the
payment (subject to the applicable laws and regulations) of the principal
of and interest and Additional Amounts (as defined in the terms and
conditions of the Bonds), if any, on the Bonds at such place or places as
the Province may determine pursuant to a written paying agency agreement (a
"Paying Agency Agreement"). In addition, the Province, with the
acknowledgement of the Registrar, hereby appoints The Bank of New York
Mellon, One Canada Square, London EI4 5AL, England, as its initial Paying
Agent in London, and The Bank of New York Mellon accepts such appointment.
The Province may at any time terminate the appointment of any Paying Agent
provided, however, that for so long as the Bonds are listed on the London
Stock Exchange plc and the rules of such stock exchange or the rules of the
Financial Services Authority (UK) so require, the Province will maintain a
paying agent in the United Kingdom. The Province will keep the Registrar
informed as to the name, address, and telephone and facsimile numbers of
each Paying Agent appointed by it and will notify the Registrar of the
resignation of any Paying Agent. The Registrar shall arrange with each
Paying Agent for the payment, as provided herein, of the principal of and
interest and Additional Amounts, if any, on the Bonds on terms approved by
the Province (further references herein to principal and interest shall be
deemed to also refer to any Additional Amounts).
(c) The Province may from time to time appoint one or more additional agents
for the processing of applications for registration of transfer or exchange
of fully registered Bonds in definitive form (hereinafter referred to as an
"Additional Transfer Agent" or "Additional Transfer Agents" and, together
with the Registrar, in its capacity as transfer agent of the Province, the
"Transfer Agents" or individually a "Transfer Agent") pursuant to a written
transfer agency agreement (a "Transfer Agency Agreement"). The Province may
at any time terminate the appointment of any Additional Transfer Agent. The
Province will keep the Registrar informed as to the name, address and
telephone and facsimile numbers of each Additional Transfer Agent appointed
by it and will notify the Registrar of the resignation or termination of
the appointment of any Additional Transfer Agent.
3. Form. (a) The Bonds shall initially be issued in the form of three fully
registered global certificates without coupons (such registered global
certificates and any registered global certificates issued upon any
transfer or exchange thereof or in replacement therefor are hereinafter
referred to as the "Global Bonds"). The Global Bonds shall be registered in
the name of Cede & Co., as nominee of The Depository Trust Company
("DTC") and held by The Bank of New York Mellon as custodian for DTC ("DTC
Custodian"). As long as DTC or its respective nominee is the registered
holder of the Global Bonds, it will be considered the sole owner and
registered holder of the Bonds for all purposes hereunder and under the
Global Bonds. None of the Province, the Registrar or any Paying Agent will
have any responsibility or liability for any aspect of the records relating
to or payments made by DTC, CDS Clearing and Depository Services Inc.,
Euroclear Bank S.A./N.V., or Clearstream Banking, societe anonyme on
account of beneficial interests in the Global Bonds. Except as provided in
Section 6 hereof, owners of beneficial interests in the Global Bonds will
not be entitled to have Bonds registered in their names, will not receive
or be entitled to receive Bonds in definitive registered form and will not
be considered registered holders thereof under this Agreement. The Global
Bonds will be substantially in the form attached hereto as Exhibit 1.
(b) All Bonds (including the Global Bonds) shall be executed on behalf of the
Province by the signature, manual or in facsimile, of the Minister of
Finance or the manual signature of any one of (i) the Deputy Minister of
Finance, or (ii) the Chief Executive Officer, the Executive Director,
Capital Markets Division or any Director, Capital Markets Division, all of
the Ontario Financing Authority, and shall be sealed with the manual or
facsimile seal of the Minister of Finance. In the event that any official
of the Province who shall have signed or whose facsimile signature shall
appear upon any of the Bonds shall cease to hold such office before the
Bonds so signed shall actually have been authenticated, registered or
delivered, such Bonds nevertheless may be authenticated, registered and
delivered with the same force and effect as though such person who signed
such Bonds had not ceased to be such official of the Province.
4. Authentication. The Registrar shall, upon receipt of Bonds duly executed
and sealed on behalf of the Province together with a written order or
orders to authenticate and deliver Bonds in a stated aggregate principal
amount, (i) authenticate and register not more than the said aggregate
principal amount of Bonds and deliver them in accordance with the written
order or orders of the Province and (ii) thereafter authenticate, register
and deliver Bonds in accordance with the provisions of Sections 5, 6 and 8
of this Agreement. Except as described in Section 9(d) hereof, the total
amount of the Bonds to be issued and outstanding at any time, whether in
the form of Global Bonds or Bonds in definitive registered form, issued in
exchange for the Global Bonds, shall not exceed US$1,500,000,000 in
aggregate principal amount, plus the aggregate principal amount of any
additional Bonds issued by the Province pursuant to any supplement hereto
in accordance with Section 15 of this Agreement.
5. Registration, Transfers and Exchanges. (a) The Registrar, as agent of the
Province for such purpose, shall at all times keep at its principal office
in the Borough of Manhattan, The City and State of New York, a register or
registers (hereinafter the "Register" or "Registers") for the registration
and registration of transfers and exchanges of Bonds, in which shall be
entered the names and addresses of the registered holders of Bonds and the
principal amount of and other particulars of the Bonds held by them.
Subject to Section 6 hereof, upon surrender for registration of transfer of
any Bond at said office, the Registrar shall authenticate, register and
deliver, in the name of the transferee or transferees, a new Bond or Bonds
for a like aggregate principal amount. Subject to Section 6 hereof, upon
surrender of any Bond at said office for exchange, the Registrar shall
authenticate, register and deliver, in exchange for such Bond, a new Bond
or new Bonds of the appropriate authorized denomination(s) and for a like
aggregate principal amount in accordance with the provisions of the Bonds.
The Province and the Registrar shall not be required to make any exchange
of Bonds if as a result thereof, the Province would incur adverse tax or
other similar consequences under the laws or regulations of any
jurisdiction in effect at the time of the exchange.
(b) All new Bonds authenticated and delivered by the Registrar upon
registration of transfer or in exchange for Bonds of other denominations
shall be so dated that neither gain nor loss of interest shall result from
such registration of transfer or exchange.
(c) All Bonds presented or surrendered for registration of transfer, exchange
or payment shall be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Registrar, duly executed by the
registered holder or its attorney duly authorized in writing and with the
signatures thereon duly guaranteed by a commercial bank or trust company
having its principal office in The City of New York or by a member of the
New York Stock Exchange.
(d) The Registrar and each Additional Transfer Agent shall not impose any
service charge on the registered holder on any such registration of
transfer or exchange of Bonds in the normal course of business; however,
the Province may require of the party requesting such transfer or exchange,
as a condition precedent to the exercise of any right of transfer or
exchange contained in this Agreement or in the Bonds, the payment of a sum
sufficient to cover any stamp or other tax or other governmental charge
payable in connection therewith.
(e) The Province, the Registrar and any Paying Agent or Additional Transfer
Agent may treat the person in whose name any Bond is registered as the
absolute owner of such Bond for the purpose of receiving payment of
principal of and interest on such Bond, and all other purposes whatsoever,
whether or not such Bond be overdue, and none of the Province, the
Registrar, any Paying Agent or any Additional Transfer Agent shall be
affected by any notice to the contrary and any such payment shall be a good
and sufficient discharge to the Province, the Registrar and any Paying
Agent or Additional Transfer Agent for the amount so paid.
(f) The Registrar shall not be required to register any transfer or exchange of
Bonds (and any Additional Transfer Agent shall not be required to accept
presentment of fully registered Bonds in definitive form for registration
of transfer or exchange by the Registrar) during the period (i) from the
Regular Record Date (as defined in the Bonds) to the Interest Payment Date
(as defined in the Bonds) or (ii) from the close of business on the
fifteenth day preceding the date of early redemption of the Bonds (the
"Redemption Record Date") to the date of early redemption of the Bonds (the
"Redemption Date"). For the purposes of any interest payment made in
accordance with Section 7(b) or (c) hereof, such payment shall be made to
those persons in whose names the Bonds are registered on such Regular
Record Date or Redemption Record Date.
(g) Each Additional Transfer Agent, as agent of the Province for such purpose,
shall maintain an office in its jurisdiction at which fully registered
Bonds in definitive form may be presented for registration of transfer or
exchange by the Registrar in accordance with this Agreement. Each
Additional Transfer Agent shall promptly forward to the Registrar all such
Bonds received by it, together with the written instrument or instruments
of transfer referred to above.
6. Special Provisions Relating to the Global Bonds. (a) Unless any Global Bond
is presented by an authorized representative of DTC to the Province, the
Registrar or their respective agents for registration of transfer, exchange
or payment, and any replacement Global Bond issued is registered in the
name of a nominee of DTC as requested by such authorized representative and
any payment is made to such nominee of DTC, any transfer, pledge or other
use of the Global Bonds for value or otherwise shall be wrongful since the
registered holder thereof has an interest therein.
(b) Except as provided in this subparagraph, Bonds will not be issued in
definitive registered form. If at any time DTC notifies the Province that
it is unwilling or unable to continue as depository for the Global Bonds or
if at any time DTC ceases to be a clearing agency registered under the
United States Securities Exchange Act of 1934, as amended, or otherwise
ceases to be eligible to be a depositary, the Province shall appoint a
successor depositary with respect to the Global Bonds. If a successor
depositary for the Global Bonds is not appointed by the Province within a
reasonable period after the Province receives such notice or becomes aware
of such ineligibility, the Province shall execute and seal Bonds in
definitive registered form, and the Registrar, upon receipt thereof, shall
authenticate and deliver such Bonds in definitive registered form without
coupons, in denominations of US$5,000 and integral multiples of US$1,000
for amounts in excess of US$5,000, in an aggregate principal amount equal
to the aggregate principal amount of the Global Bonds as of the exchange
date.
The Province may at any time and in its sole discretion determine not to
have any of the Bonds held in the form of the Global Bonds. In such event
the Province shall execute and seal Bonds in definitive registered form,
and the Registrar, upon receipt thereof, shall authenticate and deliver
such Bonds in definitive registered form without coupons, in denominations
of US$5,000 and integral multiples of US$1,000 for amounts in excess of
US$5,000, in an aggregate principal amount equal to the aggregate principal
amount of the Global Bonds as of the exchange date.
Upon the exchange of the Global Bonds for Bonds in definitive registered
form, the Registrar shall cancel such Global Bonds and shall reduce the
holdings of Cede & Co. on the Register to nil. Bonds in definitive
registered form issued in exchange for the Global Bonds pursuant to this
section shall be registered in such names as DTC pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Registrar or the Province. The Registrar shall deliver such Bonds in
definitive registered form to or as directed by the persons in whose names
such definitive registered Bonds are so registered and, to the extent
reasonably practicable in the circumstances, shall direct all payments to
be made in respect of such Bonds in definitive registered form to the
registered holders thereof on or after such exchange regardless of whether
such exchange occurred after the record date for such payment.
All Bonds in definitive registered form issued upon the exchange of the
Global Bonds shall be valid obligations of the Province, evidencing the
same debt, entitled to the same benefits and subject to the same terms and
conditions (except insofar as they relate specifically to a Global Bond) as
the Global Bonds surrendered upon such exchange.
7. Payment. (a) The Province will pay to the Registrar, in same day funds, in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts, to an
account to be specified by the Registrar, on the day on which the same
shall become due (or the next succeeding Business Day if such due date
falls upon a day which is not a Business Day as defined below, unless such
next following Business Day falls in the next succeeding calendar month, in
which case the related payment will be made on the immediately preceding
Business Day as if made on the date such payment was due), all amounts to
be paid on the Bonds for principal and interest on that date as required by
the terms of the Bonds, and the Province hereby authorizes and directs the
Registrar, from the funds so paid to it, to make payment of the principal
and interest in respect of the Bonds in accordance with their terms and the
provisions set forth below. For the purposes of this Section 7(a),
"Business Day" shall mean a day on which banking institutions in The City
of New York, the City of London and the City of Toronto are not authorized
or obligated by law or executive order to be closed.
(b) Payment of principal and interest on the Global Bonds shall be made by the
Registrar to Cede & Co., as nominee of DTC, in same day funds in
accordance with procedures agreed to between the Registrar and DTC.
(c) Payment of principal in respect of Bonds in definitive registered form
issued pursuant to Section 6(b) hereof shall be made against surrender at
the office of the Registrar in the Borough of Manhattan, The City and State
of New York or at the office of any Paying Agent appointed by the Province
for such purpose pursuant to this Fiscal Agency Agreement and any Paying
Agency Agreement. Payment of interest due prior to or on the Maturity Date
or on any Redemption Date will be made by forwarding by post or otherwise
delivering a cheque to the registered addresses of registered holders of
Bonds, or, at the option of the Province, otherwise transferring funds to
the registered holders of the Bonds. Such cheque shall be dated the due
date for payment and made payable to the order of the registered holder or,
in the case of joint registered holders, to the order of all such joint
holders (failing instructions from them to the contrary) and shall be sent
to the address of that one of such joint holders whose name stands first in
the register as one of such joint holders. The Registrar shall mail or
otherwise deliver such cheques to the names and addresses of registered
holders of Bonds sufficiently in advance of the relevant due date for
payment that receipt of such cheques by registered holders on or before the
due date is reasonably assured.
(d) All moneys paid to the Registrar under Section 7(a) of this Agreement shall
be held by it in a separate account from the moment when such money is
received until the time of actual payment, in trust for the registered
holders of Bonds to be applied by the Registrar to payments due on the
Bonds at the time and in the manner provided for in this Agreement and the
Bonds, provided that if the Registrar shall fail to duly make any such
payment due on the Bonds and, as a result of such failure, the Province
otherwise duly makes such payments to the registered holders of Bonds, the
Registrar shall thereupon hold such moneys paid to it under Section 7(a) in
trust for the Province. Any money deposited with the Registrar for the
payment of the principal or interest in respect of any Bond remaining
unclaimed for two years after such principal or interest shall have become
due and payable shall be repaid to the Province without interest, and the
registered holder of a Bond may thereafter look only to the Province for
any payment to which such holder may be entitled.
8. Mutilated, Destroyed, Stolen or Lost Bond Certificates. (a) If any Bond
certificate is mutilated, defaced, destroyed, stolen or lost, application
for replacement shall be made to the Registrar who shall promptly transmit
such application to the Province. Such application shall be accompanied by
the mutilated or defaced certificate or proof, satisfactory to the Province
in its discretion, of the destruction, theft or loss of the certificate,
and upon receipt by the Province of an indemnity satisfactory to it, the
Province shall execute a new certificate of like tenor, and upon written
instructions from the Province, the Registrar shall thereupon cancel the
mutilated or defaced certificate and adjust the Register to reflect the
cancellation, destruction, theft or loss of a certificate, as the case may
be, and authenticate, register and deliver such new certificate in exchange
for the mutilated or defaced certificate or in substitution for the
destroyed, stolen or lost certificate. Such replacement certificate shall
be so dated that neither gain nor loss in interest will result from such
exchange or substitution. All expenses associated with procuring any
indemnity and with the preparation, authentication and delivery of a
replacement certificate will be borne by the registered holder of the
mutilated, defaced, destroyed, stolen or lost Bond certificate.
(b) Whenever any Bond alleged to have been lost, stolen or destroyed for which
a replacement Bond has been issued is presented to the Registrar, any
Paying Agent or any Additional Transfer Agent for payment on the Maturity
Date, the Redemption Date or for registration of transfer or exchange, the
Registrar, the Paying Agent or the Additional Transfer Agent, as the case
may be, shall immediately notify the Province in respect thereof and shall
deal with such Bond only in accordance with the Province's instructions.
9. Maturity, Redemption and Purchases. (a) Unless previously redeemed for tax
reasons as provided in the terms and conditions of the Bonds, or
repurchased by the Province, as provided below, the principal amount of the
Bonds is due and payable on September 8, 2010 (the "Maturity Date").
(b) In accordance with the terms and conditions of the Bonds, upon receipt of a
notice to redeem and a certificate of the Province, as set forth in the
Bonds, not less than 30 days and no more than 60 days prior to the
Redemption Date, the Registrar shall cause to be published, in accordance
with Section 19(b) hereof, on behalf of the Province a notice of redemption
stating: (i) the Redemption Date; (ii) the redemption price; and (iii) if
applicable, the place or places of surrender of the Bonds to be redeemed.
(c) The Province may, if not in default under the Bonds, at any time, purchase
Bonds in the open market, or by tender or by private contract at any price,
in accordance with applicable law and may cause the Registrar to cancel any
Bonds so purchased.
(d) If the Province elects to cancel any Bonds purchased by it when Bonds have
been issued in the form of a Global Bond, it may require the Registrar to
register such cancellation and to reduce the outstanding aggregate
principal amount of the Global Bonds in accordance with the regular
procedures of DTC in effect at such time.
10. Cancellation and Destruction. All Bonds which are paid on the Maturity Date
or the Redemption Date, or surrendered for registration of transfer or
exchange for other certificates or for replacement, shall be cancelled by
the Registrar who shall register such cancellation. The Registrar shall, as
soon as practicable after the date of cancellation of Bonds under this
section or Section 8(a) or the date that the register is adjusted to
reflect the destruction, theft or loss of a certificate pursuant to Section
8(a) hereof, furnish the Province with a certificate or certificates
stating the serial numbers and total number of Bonds that have been
cancelled. The Registrar shall destroy all cancelled Bonds in accordance
with the instructions of the Province and shall furnish to the Province, on
a timely basis, certificates of destruction stating the serial numbers,
dollar value and total number of all Bonds destroyed hereunder.
11. (a) Limit on Liability. In acting under this Agreement, the Registrar, any
Paying Agent and any Additional Transfer Agent are acting solely as agents
of the Province and do not assume any obligation or relationship of agency
or trust for or with any of the registered holders of the Bonds, except
that all funds held by the Registrar, any Paying Agent or Additional
Transfer Agent for payment of principal or interest shall be held in trust
for the registered holders of Bonds as provided in this Agreement.
(b) Rights and Liabilities of Registrar. The Registrar shall incur no liability
for, or in respect of, any action taken, omitted to be taken or suffered by
it in reliance upon any Bond, certificate, affidavit, instruction, notice,
request, direction, order, statement or other paper, document or
communications reasonably believed by it to be genuine. Any order,
certificate, affidavit, instruction, notice, request, direction, statement
or other communication from the Province made or given by it and sent,
delivered or directed to the Registrar under, pursuant to, or as permitted
by, any provision of this Agreement shall be sufficient for purposes of
this Agreement if such communication is in writing and signed by any
authorized officer of the Province or its attorney duly authorized in
writing.
(c) Right of Agent to Own Bonds. The Registrar, each Paying Agent, and each
Additional Transfer Agent, and their officers, directors and employees, may
become the holder of, or acquire any interest in, any Bonds, with the same
rights that it or they would have if it were not the Registrar or a Paying
Agent or an Additional Transfer Agent hereunder, or they were not such
officers, directors or employees, and may engage or be interested in any
financial or other transaction with the Province and may act on, or as
depositary, trustee or agent for, any committee or body of registered
holders of Bonds or other obligations of the Province as freely as if it
were not the Registrar or a Paying Agent or an Additional Transfer Agent
hereunder or they were not such officers, directors or employees.
12. Expenses and Indemnity. (a) In connection with the Registrar's appointment
and duties as Registrar, the Province will pay the Registrar compensation
in an amount separately agreed upon by the Province and the Registrar. The
Province will indemnify and hold harmless the Registrar, each Paying Agent
and each Additional Transfer Agent against all claims, actions, demands,
damages, costs, losses or liability which may be incurred by the Registrar,
any Paying Agent or any Additional Transfer Agent by reason of, or in
connection with, the Registrar's, any Paying Agent's or any Additional
Transfer Agent's appointment and duties as such, except as such result from
any negligent act or omission, bad faith or wilful misconduct of the
Registrar, any Paying Agent or any Additional Transfer Agent or their
respective directors, officers, employees or agents. In addition, the
Province will (i) indemnify and hold harmless the DTC Custodian on the same
basis as aforesaid in respect of its duties as custodian for DTC but only
to the extent the DTC Custodian is not otherwise entitled to be indemnified
or held harmless by DTC, and (ii) shall, pursuant to arrangements
separately agreed upon by the Province and the Registrar, transfer to the
Registrar, upon presentation of substantiating documentation satisfactory
to the Province, amounts sufficient to reimburse the Registrar for certain
out-of-pocket expenses reasonably incurred by it and by any Paying Agent in
connection with their services. The obligation of the Province under this
paragraph shall survive payment of the Bonds and resignation or removal of
the Registrar.
(b) The Registrar, each Paying Agent and each Additional Transfer Agent agrees
to indemnify and hold harmless the Province against all claims, actions,
demands, damages, costs, losses and liabilities arising out of or relating
to any negligent act or omission, bad faith or wilful misconduct of the
Registrar, such Paying Agent or such Additional Transfer Agent, as the case
may be, or its respective directors, officers, employees or agents. The
obligations of the Registrar, each Paying Agent and each Additional
Transfer Agent under this paragraph shall survive payment of the Bonds and
resignation or removal of the Registrar, each Paying Agent and each
Additional Transfer Agent.
(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 it from any liability which it may have otherwise than on
account of this indemnity. An indemnifying party may participate at its own
expense in the defence of such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party may assume the
defence of such action with legal advisors chosen by it and approved by the
indemnified party defendant in such action, unless such indemnified party
reasonably objects to such assumption on the ground that there may be legal
defences available to it which are different from or in addition to those
available to such indemnifying party, but an indemnifying party may not
settle any action commenced against an indemnified party without the
written consent of the indemnified party. In order to be entitled to an
indemnity with respect to a claim hereunder, an indemnified party will not,
without the prior written consent of the indemnifying party, settle or
compromise or consent to the entry of any judgment with respect to such
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnifying party is an actual or potential party to such claim or
action). If an indemnifying party assumes the defence of any such action,
the indemnifying party shall not be liable for any fees or expenses of the
legal advisors of the indemnified party incurred thereafter in connection
with such action. 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 Registrar. The Province agrees that there shall at all times
be a Registrar hereunder and that the registrar shall be a bank or trust
company organized and doing business under the laws of the United States of
America or of the State of New York, in good standing and having a place of
business in the Borough of Manhattan, The City and State of New York, and
authorized under such laws to exercise corporate trust powers, provided,
the Province may choose to act at any time as its own fiscal agent,
transfer agent, registrar and principal paying agent.
The Registrar shall not transfer or assign this Agreement or any interest
or obligation herein without the Province's prior written consent. Any
corporation into which the Registrar hereunder may be merged or converted,
or any corporation with which the Registrar may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Registrar shall sell or otherwise transfer all or substantially all of
the corporate trust business of the Registrar, provided that it shall be
qualified as aforesaid, shall be the successor Registrar under this
Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, but subject to prior notice to
and the prior written approval of the Province.
(b) Resignation. The Registrar may at any time resign by giving written notice
to the Province of its resignation, specifying the date on which its
resignation shall become effective (which shall not be less than 60 days
after the date on which such notice is given unless the Province shall
agree to a shorter period); provided that no such notice shall expire less
than 30 days before or 30 days after the due date for any payment of
principal or interest in respect of the Bonds. The Province may remove the
Registrar at any time by giving written notice to the Registrar specifying
the date on which such removal shall become effective. Such resignation or
removal shall only take effect upon the appointment by the Province of a
successor Registrar and upon the acceptance of such appointment by such
successor Registrar. Any Paying Agent or Additional Transfer Agent may
resign or may be removed at any time upon like notice, and the Province in
any such case may appoint in substitution therefor a new Paying Agent or
Paying Agents or Additional Transfer Agent or Additional Transfer Agents.
(c) Bankruptcy or Insolvency of Registrar. The appointment of the Registrar
hereunder shall forthwith terminate, whether or not notice of such
termination shall have been given, if at any time the Registrar becomes
incapable of performing its duties hereunder, or is adjudged bankrupt or
insolvent, or files a voluntary 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 meet its debts as they mature
or suspends payment thereof, or if a resolution is passed or an order made
for the winding up or dissolution of the Registrar, or if a liquidator or
receiver of the Registrar of all or any substantial part of its property is
appointed, or if any order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer takes charge or control of the
Registrar or its property or affairs for the purposes of rehabilitation,
conservation or liquidation.
(d) Appointment of Successor. Prior to the effective date of any such
resignation or removal of the Registrar, or if the Registrar shall become
unable to act as such or shall cease to be qualified as aforesaid, the
Province shall appoint a successor Registrar, qualified as aforesaid. Upon
the appointment of a successor Registrar and its acceptance of such
appointment, the retiring Registrar shall, at the direction of the Province
and upon payment of its compensation and expenses then unpaid, deliver and
pay over to its successor any and all securities, money and any other
properties then in its possession as Registrar and shall thereupon cease to
act hereunder.
(e) Payment of Certain Registrar's Fees Upon Termination. If the Registrar
resigns pursuant to Section 13(b) of this Agreement or ceases to act as the
Province's fiscal agent in respect of the Bonds pursuant to Section 13(c)
of this Agreement, the Registrar shall only be entitled to annual fees
otherwise payable to it under this Agreement on a pro rata basis for that
period since the most recent anniversary of this Agreement during which the
Registrar has acted as fiscal agent hereunder. In the event that the
Registrar ceases to act as the Province's fiscal agent in respect of the
Bonds for any other reason, the Registrar shall be entitled to receive the
full amount of the annual fees payable to it in respect of the Bonds
pursuant to Section 12 of this Agreement.
14. Meetings of Holders of Bonds. (a) The Registrar shall convene a meeting of
the registered holders of the Bonds for any lawful purpose affecting their
interests upon receipt of a written request of the Province or a written
request signed in one or more counterparts by the registered holders of not
less than 10% of the principal amount of the Bonds then outstanding and
upon being indemnified as to its reasonable satisfaction by the Province or
the registered holders of Bonds signing such request, as the case may be,
against the costs which may be incurred in connection with the calling and
holding of such meeting. If the Registrar fails to give notice convening
such meeting within 30 days after receipt of such request and indemnity,
the Province or such registered holders of Bonds, as the case may be, may
convene such meeting. Every such meeting shall be held in Toronto, Canada
or such other place as may be approved or determined by the Province.
(b) At least 21 days' notice of any meeting shall be given to the registered
holders of the Bonds in the manner provided pursuant to the terms and
conditions of the Bonds and a copy thereof shall be sent by prepaid courier
to the Registrar unless the meeting has been called by the Registrar, and
to the Province, unless the meeting has been called by the Province. Such
notice shall state the time, place and purpose of the meeting and the
general nature of the business to be transacted at the meeting, and shall
include a statement to the effect that, prior to 48 hours before the time
fixed for the meeting, (i) in the case of Bonds issued in the form of a
Global Bond, those persons recorded in the Register, or (ii) in the limited
circumstances in which Bonds in definitive registered form have been
issued, those registered holders of Bonds who deposit their Bonds with the
Registrar or any other person authorized for such purpose by the Registrar
or the Province, shall be entitled to obtain voting certificates for
appointing proxies (subject to such procedures and requirements as the
Province and the Registrar may prescribe), but it shall not be necessary
for any such notice to set out the terms of any resolution to be proposed
at such meeting or any other provisions.
(c) A registered holder of Bonds may appoint any person by instrument in
writing as the holder's proxy in respect of a meeting of the registered
holders of Bonds or any adjournment of such meeting, and such proxy shall
have all rights of the registered holder of Bonds in respect of such
meeting. All written notices to DTC of meetings shall contain a requirement
that the registered holders of Bonds must notify clearing system
participants and, if known, beneficial owners of Bonds of the meeting in
accordance with procedures established from time to time by such clearing
systems. The registered holders of Bonds shall seek voting instructions on
the matters to be raised at such meeting from the clearing system
participants or, if known, from the beneficial owners of Bonds.
(d) A person, who need not be a registered holder of Bonds, will be nominated
in writing by the Registrar as chairperson of the meeting and if no person
is so nominated or if the person so nominated is not present within 15
minutes from the time fixed for the holding of the meeting, the registered
holders of the Bonds present in person or by proxy shall choose some person
present to be chairperson, and failing such choice, the Province may
appoint a chairperson.
(e) At a meeting of registered holders of Bonds, a quorum shall consist of one
or more registered holders of Bonds present in person or by proxy who
represent at least a majority in principal amount of the Bonds at the time
outstanding. If a quorum of the registered holders of Bonds shall not be
present within one-half hour after the time fixed for holding any meeting,
the meeting, if convened by or at the request of registered holders of
Bonds, shall be dissolved, but if otherwise convened the meeting shall
stand adjourned without notice to the same day in the next week (unless
such day is not a business day in the place where the meeting is to take
place in which case it shall stand adjourned until the next such business
day following thereafter) at the same time and place unless the chairperson
appoints some other place in Toronto, Ontario, or some other day or time of
which not less than seven (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 Bonds then outstanding.
(f) The chairperson of any meeting at which a quorum of the registered holders
of Bonds is present may, with the consent of the registered holder(s) of a
majority of principal amount of the Bonds represented thereat, adjourn any
such meeting and no notice of such adjournment need be given except such
notice, if any, as the meeting may prescribe.
(g) Every motion or question submitted to a meeting shall be decided by
Extraordinary Resolution (as defined below) and in the first place by the
votes given on a show of hands. At any such meeting, unless a poll is duly
demanded as herein provided, a declaration by the chairperson that a
resolution has been carried or carried unanimously or by a particular
majority or lost or not carried by a particular majority shall be
conclusive of the fact. On any question submitted to a meeting when ordered
by the chairperson or demanded by a show of hands by one or more registered
holders of Bonds acting in person or by proxy and holding at least 2% in
principal amount of the Bonds then outstanding, a poll shall be taken in
such manner as the chairperson shall direct.
(h) On a poll, each registered holder of Bonds present in person or represented
by a proxy duly appointed by an instrument in writing shall be entitled to
one vote in respect of each US$5,000 principal amount of Bonds of which the
person shall then be the registered holder (calculated on a pro rata basis
for registered holders who hold Bonds in integral multiples of US$1,000 in
excess of US$5,000). A proxy need not be a registered holder of Bonds. In
the case of Bonds held jointly, any one of the joint registered holders
present in person or by proxy may vote in the absence of the other or
others; but in case more than one of them be present in person or by proxy,
only one of them may vote in respect of each US$5,000 principal amount of
Bonds (or such greater amount of Bonds that is not an integral multiple of
US$5,000) of which they are joint registered holders.
(i) The Province and the Registrar, by their authorized representatives,
officers and directors, and the financial and legal advisors of the
Province and the Registrar may attend any meeting of the registered holders
of Bonds, but shall have no vote as such.
(j) Except as set forth in Section 18 hereof, the registered holders of the
Bonds may consent by Extraordinary Resolution (as defined below) to any
modification or amendment proposed by the Province to this Agreement and
the Bonds. An Extraordinary Resolution duly passed at any such meeting
shall be binding on all registered holders of Bonds, whether present or
not; however, no such modification or amendment to this Agreement or the
Bonds shall, without the consent of the registered holder of each such Bond
affected thereby; (a) change the Maturity Date of any Bond or change any
Interest Payment Date; (b) reduce the principal amount thereof or the rate
of interest payable thereon; (c) change the coin or currency of payment of
any Bond; (d) impair the right to institute suit for the enforcement of any
such payment on or with respect to such Bond; or (e) reduce the percentage
of principal amount of Bonds necessary for the taking of any action,
including modification or amendment of this 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
Bonds represented at the meeting in person or by proxy and voted 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 outstanding Bonds.
(k) Minutes of all resolutions and proceedings at every meeting of registered
holders of Bonds held in accordance with the provisions of this Agreement
shall be made and entered in books to be from time to time provided for
that purpose by the Registrar at the expense of the Province and any such
minutes, if signed by the chairperson of the meeting at which such
resolutions were passed or proceedings taken, or by the chairperson of the
next succeeding meeting of the registered holders of Bonds, shall be prima
facie evidence of the matters therein stated and, until the contrary is
proved, every such meeting, in respect of the proceedings of which minutes
shall have been made, shall be deemed to have been duly held and convened,
and all resolutions passed and proceedings taken thereat to have been duly
passed and taken.
(l) Every Extraordinary Resolution passed in accordance with the provisions of
this Agreement at a meeting of registered holders of Bonds shall be binding
upon all the registered holders of Bonds, whether present at or absent from
such meeting, and every instrument in writing signed by registered holders
of Bonds in accordance with paragraph (j) of this Section 14 shall be
binding upon all the registered holders of Bonds (whether or not a
signatory). Subject to the provisions for its indemnity herein contained,
the Registrar shall be bound to give effect accordingly to every such
Extraordinary Resolution.
(m) The Registrar, or the Province with the approval of the Registrar, may from
time to time make, and from time to time vary, such regulations as it shall
from time to time deem fit:
(i) for the deposit of instruments appointing proxies at such place as the
Registrar, the Province or the registered holders of Bonds convening a
meeting, as the case may be, may in the notice convening such meeting
direct; and
(ii) for the deposit of instruments appointing proxies at some approved place or
places other than the place at which the meeting is to be held and enabling
particulars of such instruments appointing proxies to be mailed, cabled or
sent by any other means of recorded communication before the meeting to the
Province or to the Registrar at the place where the same is to be held and
for the voting of proxies so deposited as though the instruments themselves
were produced at the meeting.
Any regulation so made shall be binding and effective and votes given in
accordance therewith shall be valid and shall be counted. Save as such
regulations may provide, the only persons who shall be entitled to vote at
a meeting of registered holders of Bonds shall be the registered holders
thereof or their duly appointed proxies.
15. Further Issues. The Province may from time to time, without notice to or
the consent of the registered holders of the Bonds, create and issue
further bonds ranking pari passu with the Bonds in all respects (or in all
respects except for the payment of interest accruing prior to the issue
date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further
bonds shall be consolidated and form a single series with the Bonds and
shall have the same terms as to status, redemption or otherwise as the
Bonds. Any further bonds shall be issued with the benefit of an agreement
supplemental to this Agreement.
16. Reports. The Registrar shall furnish to the Province such reports as may be
required by the Province relative to the Registrar's performance under this
Agreement. The Province may, whenever it deems it necessary, inspect books
and records maintained by the Registrar pursuant to this Agreement, if any.
17. Forwarding of Notice. If the Registrar shall receive any notice or demand
addressed to the Province pursuant to the provisions of the Bonds, the
Registrar shall promptly forward such notice or demand to the Province.
18. Amendments. This Agreement and the Bonds may be amended or supplemented by
the parties hereto, without notice to or the consent of the registered
holder of any Bond, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or in
the Bonds, or effecting the issue of further bonds as described under
Section 15 of this Agreement, or in any other manner which the Province may
deem necessary or desirable and which, in the reasonable opinion of the
parties hereto, shall not adversely affect the interests of the beneficial
owners of the Bonds.
19. Notices. (a) Any communications from the Province to the Registrar with
respect to this Agreement shall be addressed to The Bank of New York
Mellon, 101 Barclay Street, New York, New York 10286, Attention: Corporate
Trust Department, Fax No. (212) 815-5802/5803 and any communications from
the Registrar to the Province with respect to this Agreement shall be
addressed to the Ontario Financing Authority, One Dundas Street West, Suite
1400, Toronto, Ontario, M5G 1Z3, Attention: Director, Capital Markets
Operations, Capital Markets Division, Fax No. (416) 325-8111 (or such other
address as shall be specified in writing by the Registrar or by the
Province, as the case may be) and shall be delivered in person or sent by
first class prepaid courier or by facsimile transmission subject, in the
case of facsimile transmission, to confirmation by telephone to the
foregoing addresses. Such notice shall take effect in the case of delivery
in person, at the time of delivery, in the case of delivery by first class
prepaid courier seven (7) business days after dispatch and in the case of
delivery by facsimile transmission, at the time of confirmation by
telephone.
(b) All notices to the registered holders of Bonds will be published 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 Toronto, Canada. If at any time
publication in any such newspaper is not practicable, notices will be valid
if published in an English language newspaper with general circulation in
the respective market regions as the Province, with the approval of the
Registrar, shall determine. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once or on
different dates, on the first date on which publication is made. Written
notice will also be given to DTC, provided at the time of such notice the
Bonds are represented by the Global Bonds.
20. Governing Law and Counterparts. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the Province of Ontario and the
federal laws of Canada applicable in the Province of Ontario. This
Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
21. Headings. The headings for the sections of this Agreement are for
convenience only and are not part of this Agreement.
22. Enurement. Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Fiscal Agency
Agreement as of the date first above written.
PROVINCE OF ONTARIO
By: /s/ Irene Stich
-----------------------------------------------
Name: Irene Stich
Title: Director
Capital Markets Operations
Capital Markets Division
Ontario Financing Authority
THE BANK OF NEW YORK MELLON
as Registrar and additional Paying Agent in London
By: /s/ Vanessa Mack
-----------------------------------------------
Name: Vanessa Mack
Title: Vice President
EXHIBIT 1
FORM OF GLOBAL BOND
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. PS-A0001 CUSIP: 683234 A32
SERIES: PS ISIN: US683234A329
PROVINCE OF ONTARIO
3.125% BOND DUE SEPTEMBER 8, 2010
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum
of FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on September 8, 2010
(the "Maturity Date") (or on such earlier date as the Principal Amount may
become payable hereunder), upon presentation and surrender of this Bond and to
pay interest thereon, together with Additional Amounts (as defined below), if
any, at the rate of 3.125% per annum from September 5, 2008 until the principal
hereof is paid. Interest for the period from, and including, September 5, 2008
to, but excluding, March 8, 2009 will be payable on March 8, 2009 (the "Initial
Interest Payment Date"). Thereafter, interest on this Bond will be payable in
two equal semi-annual installments in arrears on the 8th day of March and the
8th day of September in each year (each such date, and the Initial Interest
Payment Date, an "Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its
3.125% Bonds due September 8, 2010 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of September 5, 2008 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond
is a charge on and payable out of the Consolidated Revenue Fund of Ontario. This
Global Bond is a direct unsecured obligation of the Province and as among the
other Bonds, ranks pari passu and is payable without any preference or priority.
This Global Bond ranks equally with all of the Province's other unsecured and
unsubordinated indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from September 5, 2008, until the principal hereof has
been paid or duly made available for payment. Any overdue principal or interest
on this Global Bond shall bear interest at the rate of 3.125% per annum (before
as well as after judgment) until paid, or if earlier, when the full amount of
the moneys payable has been received by the Registrar and notice to that effect
has been given in accordance with the provisions set forth herein. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on February
21st or August 24th (whether or not a Business Day, as defined below), as the
case may be, next preceding such Interest Payment Date (each such day a "Regular
Record Date"). Any such interest not so punctually paid or duly provided for
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on a special
record date for the payment of such defaulted interest to be fixed by the
Registrar, notice whereof shall be given to the registered holder hereof not
less than ten (10) days prior to such special record date, or be paid at any
time in any other lawful manner. Interest payments on this Global Bond will
include interest accrued to but excluding the Interest Payment Dates. Interest
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in The City of
New York, the City of London and the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of
such Bond has not been received by the Registrar on or prior to such
date, the date on which notice is duly given to the holders of Bonds
that such moneys have been so received.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on September 8, 2010.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after August 28,
2008, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, The City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
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 Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are listed on the London Stock Exchange and if the
rules of such stock exchange on which the Bonds are listed or the rules of the
Financial Services Authority (UK) so require, the Province agrees to appoint and
maintain a paying agent in London.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: September 5, 2008 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
---------------------------------------
Authorized Signatory
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. PS-A0002 CUSIP: 683234 A32
SERIES: PS ISIN: US683234A329
PROVINCE OF ONTARIO
3.125% BOND DUE SEPTEMBER 8, 2010
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum
of FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on September 8, 2010
(the "Maturity Date") (or on such earlier date as the Principal Amount may
become payable hereunder), upon presentation and surrender of this Bond and to
pay interest thereon, together with Additional Amounts (as defined below), if
any, at the rate of 3.125% per annum from September 5, 2008 until the principal
hereof is paid. Interest for the period from, and including, September 5, 2008
to, but excluding, March 8, 2009 will be payable on March 8, 2009 (the "Initial
Interest Payment Date"). Thereafter, interest on this Bond will be payable in
two equal semi-annual installments in arrears on the 8th day of March and the
8th day of September in each year (each such date, and the Initial Interest
Payment Date, an "Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its
3.125% Bonds due September 8, 2010 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of September 5, 2008 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from September 5, 2008, until the principal hereof has
been paid or duly made available for payment. Any overdue principal or interest
on this Global Bond shall bear interest at the rate of 3.125% per annum (before
as well as after judgment) until paid, or if earlier, when the full amount of
the moneys payable has been received by the Registrar and notice to that effect
has been given in accordance with the provisions set forth herein. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on February
21st or August 24th (whether or not a Business Day, as defined below), as the
case may be, next preceding such Interest Payment Date (each such day a "Regular
Record Date"). Any such interest not so punctually paid or duly provided for
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on a special
record date for the payment of such defaulted interest to be fixed by the
Registrar, notice whereof shall be given to the registered holder hereof not
less than ten (10) days prior to such special record date, or be paid at any
time in any other lawful manner. Interest payments on this Global Bond will
include interest accrued to but excluding the Interest Payment Dates. Interest
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in The City of
New York, the City of London, and the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of
such Bond has not been received by the Registrar on or prior to such
date, the date on which notice is duly given to the holders of Bonds
that such moneys have been so received.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on September 8, 2010.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after August 28,
2008, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, The City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
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 Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are listed on the London Stock Exchange and if the
rules of such stock exchange on which the Bonds are listed or the rules of the
Financial Services Authority (UK) so require, the Province agrees to appoint and
maintain a paying agent in London.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: September 5, 2008 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
---------------------------------------
Authorized Signatory
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 Water Street, New York, New
York) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of the Depository (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED
NO. PS-A0003 CUSIP: 683234 A32
SERIES: PS ISIN: US683234A329
PROVINCE OF ONTARIO
3.125% BOND DUE SEPTEMBER 8, 2010
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum
of FIVE HUNDRED MILLION UNITED STATES DOLLARS (US$500,000,000) (the "Principal
Amount") in lawful money of the United States of America on September 8, 2010
(the "Maturity Date") (or on such earlier date as the Principal Amount may
become payable hereunder), upon presentation and surrender of this Bond and to
pay interest thereon, together with Additional Amounts (as defined below), if
any, at the rate of 3.125% per annum from September 5, 2008 until the principal
hereof is paid. Interest for the period from, and including, September 5, 2008
to, but excluding, March 8, 2009 will be payable on March 8, 2009 (the "Initial
Interest Payment Date"). Thereafter, interest on this Bond will be payable in
two equal semi-annual installments in arrears on the 8th day of March and the
8th day of September in each year (each such date, and the Initial Interest
Payment Date, an "Interest Payment Date").
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its
3.125% Bonds due September 8, 2010 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to US$500,000,000. This Global Bond and all the
rights of the registered holder hereof are expressly subject to a fiscal agency
agreement dated as of September 5, 2008 (the "Fiscal Agency Agreement") between
the Province and The Bank of New York Mellon, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Registrar", which term includes any
successor as fiscal agent, transfer agent, registrar and principal paying agent)
to which Fiscal Agency Agreement reference is hereby made for a statement of the
respective rights, duties and immunities of the Province, the Registrar and
holders of the Bonds and the terms upon which the Bonds are, and are to be,
authenticated and delivered. This Global Bond and the Fiscal Agency Agreement
together constitute a contract, all the terms and conditions of which the
registered holder by acceptance hereof assents to and is deemed to have notice
of. Capitalized terms not defined herein shall have the meaning assigned to them
in the Fiscal Agency Agreement. Further references herein to principal or
interest shall be deemed to also refer to any Additional Amounts which may be
payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the federal laws of Canada applicable in the Province of
Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from September 5, 2008, until the principal hereof has
been paid or duly made available for payment. Any overdue principal or interest
on this Global Bond shall bear interest at the rate of 3.125% per annum (before
as well as after judgment) until paid, or if earlier, when the full amount of
the moneys payable has been received by the Registrar and notice to that effect
has been given in accordance with the provisions set forth herein. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on February
21st or August 24th (whether or not a Business Day, as defined below), as the
case may be, next preceding such Interest Payment Date (each such day a "Regular
Record Date"). Any such interest not so punctually paid or duly provided for
will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on a special
record date for the payment of such defaulted interest to be fixed by the
Registrar, notice whereof shall be given to the registered holder hereof not
less than ten (10) days prior to such special record date, or be paid at any
time in any other lawful manner. Interest payments on this Global Bond will
include interest accrued to but excluding the Interest Payment Dates. Interest
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in The City of
New York, the City of London and the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States as, at the time of payment, is legal
tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties, assessments
or charges in respect of such Bond by reason of such owner being connected
with Canada otherwise than merely by the ownership as a non-resident of
Canada of such Bond, but only to the extent of such owner's interest(s)
therein; or
(b) presented for payment more than 15 days after the Relevant Date, except to
the extent that the holder thereof would have been entitled to such
Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of
such Bond has not been received by the Registrar on or prior to such
date, the date on which notice is duly given to the holders of Bonds
that such moneys have been so received.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on September 8, 2010.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after August 28,
2008, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, The City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of US$5,000 and integral multiples of US$1,000 for amounts in
excess of US$5,000 in an equal aggregate principal amount and having identical
terms and conditions as this Global Bond, except to the extent that such terms
and conditions specifically relate to this Global Bond as a global security. On
or after such exchange, the Registrar, to the extent reasonably practicable in
the circumstances, shall make all payments to be made in respect of such Bonds
in definitive registered form to the registered holders thereof regardless of
whether such exchange occurred after the record date for such payment. If this
Global Bond is surrendered for transfer, it shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. No service charge will be imposed for any such transfers and exchanges
in the normal course of business, but the Province may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge in
connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
The Province's obligation to pay an amount of interest on the Bonds will
cease if a claim for the payment of such interest is not made within two years
after the date on which such interest becomes due and payable. The Province's
obligation to pay the principal amount of the Bonds will cease if the Bonds are
not presented for payment within two years after the date on which such
principal becomes due and payable.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66 2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66 2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
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 Toronto, Canada. If at any time publication in
any such newspaper is not practicable, notices will be valid if published in an
English language newspaper with general circulation in the respective market
regions as the Province, with the approval of the Registrar, shall determine.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once or on different dates, on the first
date on which publication is made.
For so long as the Bonds are listed on the London Stock Exchange and if the
rules of such stock exchange on which the Bonds are listed or the rules of the
Financial Services Authority (UK) so require, the Province agrees to appoint and
maintain a paying agent in London.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: September 5, 2008 PROVINCE OF ONTARIO
By:
-----------------------------------------------
Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON
as Registrar
By:
------------------------------
Authorized Signatory
Dated as of August 28, 2008
PROVINCE OF ONTARIO
U.S.$1,500,000,000
3.125% Bonds due September 8, 2010
______________________
UNDERWRITING AGREEMENT
______________________
Province of Ontario
Underwriting Agreement
August 28, 2008
HSBC Securities (USA) Inc.
Merrill Lynch International
RBC Capital Markets Corporation
As representatives of the several Underwriters
c/o RBC Capital Markets Corporation
One Liberty Plaza, 2nd Floor
New York, NY 10006
Dear Sirs:
The Province of Ontario (the "Province") proposes to sell the principal
amount of its securities identified in Schedule II hereto (the "Securities") to
the underwriters named in Schedule II hereto (the "Underwriters"), for whom you
are acting as representatives (the "Representatives"). The Securities will be
issued in the form of one or more fully registered permanent global securities
(the "Global Securities") registered in the name of Cede & Co., as the nominee
of The Depository Trust Company ("DTC"), subject to the provisions of the fiscal
agency agreement between the Province of Ontario and the Bank of New York
Mellon, as fiscal agent, expected to be dated the Closing Date (as defined
below) (the "Fiscal Agency Agreement"). As of August 28, 2008, (the "Time of
Sale"), the Province had prepared the following information (collectively, the
"Time of Sale Information"): a Preliminary Final Prospectus (as defined below)
dated August 27, 2008, and the Issuer Free Writing Prospectus (as defined below)
in the form of Schedule I hereto. As used herein, "Issuer Free Writing
Prospectus" shall have the meaning assigned to the term "issuer free writing
prospectus" in Section 433 under the U.S. Securities Act of 1933, as amended
(the "U.S. Securities Act"). This Agreement is to confirm the arrangements with
respect to the purchase of the Securities by the Underwriters.
1. Representations and Warranties. The Province represents and warrants to,
and agrees with, each Underwriter that:
(i) The Time of Sale Information, at the Time of Sale and at the Closing Date,
did not and will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Province makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in
conformity with information furnished to the Province in writing by any
Underwriter through the Representatives expressly for use in such Time of
Sale Information. The Issuer Free Writing Prospectus in the form of
Schedule I hereto complies in all material respects with the U.S.
Securities Act.
(ii) The Province has filed with the U.S. Securities and Exchange Commission
(the "SEC") a registration statement or registration statements under
Schedule B of the U.S. Securities Act, which has or have become effective,
for the registration of any Securities which may be sold in the United
States under the U.S. Securities Act. Each such registration statement, as
amended at the date of this Agreement, complies in all material respects
with the requirements of the U.S. Securities Act and the rules and
regulations thereunder. The Province has filed a Preliminary Final
Prospectus (as defined below) with the SEC pursuant to Rule 424 under the
U.S. Securities Act, which has been furnished to the Underwriters, and
proposes to file with the SEC pursuant to Rule 424 under the U.S.
Securities Act a supplement to the form of prospectus included in the most
recent registration statement, or amendment thereto, filed with the SEC
relating to the Securities and the plan of distribution thereof and has
advised you of all further information (financial and other) with respect
to the Province to be set forth therein. 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 herein called the "Registration Statement"; the
prospectus in the form in which it appears in the Registration Statement,
including the documents incorporated by reference therein, is herein called
the "Basic Prospectus"; such supplemented form of prospectus, in the form
in which it shall be first filed with the SEC pursuant to Rule 424 after
the date hereof (including the Basic Prospectus as so supplemented),
including the documents incorporated by reference therein, is herein called
the "Final Prospectus"; and any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 (including the Basic
Prospectus as so supplemented), including the documents incorporated by
reference therein, is herein called the "Preliminary Final Prospectus".
(iii) The documents filed by the Province with the SEC pursuant to the U.S.
Securities Exchange Act of 1934, as amended (the "U.S. Exchange Act") that
are incorporated by reference in the Preliminary Final Prospectus or the
Final Prospectus, at the time they were filed with the SEC, complied in all
material respects with the requirements of the U.S. Exchange Act and the
rules and regulations thereunder.
(iv) The Province will use all reasonable efforts to publish, as soon as
possible after the Closing Date, a prospectus approved by the UK Listing
Authority (as defined below) (the "UKLA Prospectus") in compliance with
Directive 2003/71/EC (the "Prospectus Directive") and all laws, regulations
and rules implementing the Prospectus Directive, as amended from time to
time and shall submit (or procure the submission on its behalf of) such
reports or information as may from time to time be required and otherwise
comply with the Prospectus Directive and all laws, regulations and rules
implementing the Prospectus Directive.
(v) As of the date hereof, when the Final Prospectus is first filed pursuant to
Rule 424 under the U.S. Securities Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective, when any supplement to the Final Prospectus is filed with the
SEC and at the Closing Date, (a) the Registration Statement, as amended as
of any such time and the Final Prospectus, as amended or supplemented as of
any such time, complied and will comply in all material respects with the
applicable requirements of the U.S. Securities Act and the rules and
regulations thereunder and (b) the Registration Statement, as amended as of
any such time, did not or will 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 the Final Prospectus, as amended or supplemented as of any
such time, will 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, in the light of the circumstances
under which they were made, not misleading, and the summary set out in the
Final Prospectus is not misleading, inaccurate or inconsistent when read
with other parts of the Final Prospectus; provided, however, that the
Province makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
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 of the Registration Statement or
the Final Prospectus.
2. 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, severally and not jointly,
agrees to purchase from the Province, at the purchase price set forth in
Schedule II hereto, the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be
made at the offices of Shearman & Sterling LLP, Commerce Court West, Suite
4405, Toronto, Ontario, Canada (or such other place as may be agreed to by
the Representatives and the Province) at 9:00 a.m., Toronto time, on
September 5, 2008 (or at such time on 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"). Delivery of the Global
Securities 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
Securities shall be substantially in the form annexed to the Fiscal Agency
Agreement and registered in the name of Cede & Co., as nominee of DTC.
The Global Securities shall be made available for inspection and checking
by the Representatives in Toronto, Ontario not later than 3:00 P.M.
(Toronto time) on the business day prior to the Closing Date. For purposes
of this Agreement, "business day" shall mean a day on which banking
institutions in the City of Toronto are not authorized or obligated by law
or executive order to be closed.
4. Listing. The Province agrees with the Underwriters to file or cause to be
filed an application to the Financial Services Authority in its capacity as
competent authority under the Financial Services and Markets Act 2000, as
amended (the "UK Listing Authority"), for the Securities to be admitted to
the Official List of the UK Listing Authority (the "Official List") and for
the Securities to be admitted to trading on the Regulated Market of the
London Stock Exchange plc (the "Stock Exchange") as soon as possible after
the Closing Date. References herein to "list", "listed" or "listing" when
used in relation to the Stock Exchange shall mean admitted to the Official
List and admitted to trading on the Regulated Market of the Stock Exchange,
which is a regulated market for the purposes of the Markets in Financial
Instruments Directive (2004/39/EC). The Province shall use all reasonable
efforts to cause the Securities to be listed on the Stock Exchange as soon
as possible after the Closing Date. The Province further agrees to furnish
to the UK Listing Authority and 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 the listing of the Securities on the Stock
Exchange to be continued for so long as any of the Securities remain
outstanding; provided, however, that if in the opinion of the Province, the
continuation of such listing shall become unduly onerous, then the Province
may delist the Securities from the Stock Exchange; provided, further, that
if the Securities are to be so delisted from the Stock Exchange, the
Province will use its best efforts to obtain the admission to listing,
trading and/or quotation of the Securities by another listing authority,
securities exchange and/or quotation system reasonably acceptable to the
Representatives and the Province prior to the delisting of the Securities
from the Stock Exchange. The provisions of this Section 4 shall apply to
any other listing authority, securities exchange and/or quotation system on
which the Securities may be admitted to listing, trading and/or quotation
mutatis mutandis.
5. Agreements. (a) The Province and the Underwriters agree that:
(i) Prior to the termination of the offering of the Securities, the Province
will not file any amendment to the Registration Statement, any supplement
to the Time of Sale Information or the Final Prospectus, or any document
that would as a result thereof be incorporated by reference in the Time of
Sale Information or the Final Prospectus, unless the Province has furnished
to the Underwriters a copy for their review prior to filing and will not
file any such proposed amendment, supplement or document to which the
Underwriters reasonably object, except that the Underwriters 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 and the
Ontario Electricity Financial Corporation in the ordinary course. Subject
to the foregoing sentence, the Province will cause any Preliminary Final
Prospectus and the Final Prospectus to be filed (or mailed for filing) with
the SEC pursuant to Rule 424 and the Province will file any Issuer Free
Writing Prospectus to the extent required by Rule 433 under the U.S.
Securities Act. The Province will promptly advise the Representatives (i)
when the Time of Sale Information, the Final Prospectus or any document
that would as a result thereof be incorporated by reference in the Time of
Sale Information or the Final Prospectus shall have been filed (or mailed
for filing) with the SEC, (ii) when any amendment to the Registration
Statement relating to the Securities shall have become effective, (iii) of
any request by the SEC for any amendment of the Registration Statement or
amendment of or supplement to the Time of Sale Information or the Final
Prospectus or for any additional information relating thereto or to any
document incorporated by reference in the Preliminary Final Prospectus or
the Final Prospectus, (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Province of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Province will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) Before using or filing any Issuer Free Writing Prospectus, other than the
Issuer Free Writing Prospectus in the form of Schedule I hereto, the
Province will furnish to the Representatives and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus for
review and will not use or file any such Issuer Free Writing Prospectus to
which the Representatives reasonably object provided that the
Representatives may not object to a filing that is required.
(iii) If, at any time when a prospectus relating to the Securities is required
to be delivered under the U.S. Securities Act, any event occurs as a result
of which the Time of Sale Information or the Final Prospectus as then
amended or supplemented would include any 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 shall be necessary to amend or supplement the Time of
Sale Information or the Final Prospectus to comply with the U.S. Securities
Act or the rules and regulations thereunder, the Province promptly will
prepare and file with the SEC, subject to the first sentence in paragraph
(a)(i) of this Section 5, an amendment or supplement at its own expense
which will correct such statement or omission or an amendment which will
effect such compliance.
(iv) Subject to the UKLA Prospectus being approved and published in accordance
with Section 1(iv), the Province shall update or amend the UKLA Prospectus
by the publication in accordance with the Prospectus Directive of a
supplement thereto or an update thereof in the event that (A) a significant
new factor, material mistake or inaccuracy relating to the information
included in the UKLA Prospectus which is capable of affecting the
assessment of the Securities arises or is noted, or (B) if there is any
Significant (as defined below) change affecting any matter contained in the
UKLA Prospectus or a Significant new matter arises, the inclusion of
information in respect of which would have been so required if it had
arisen when the UKLA Prospectus was prepared, or if such supplement or
update would be required by the UK Listing Authority prior to the listing
of such Securities. Without prejudice to the generality of the foregoing,
the Province undertakes that in the period from and including the date when
the UKLA Prospectus is approved by the UK Listing Authority to and
including the date when the Securities are issued it will only prepare and
publish a supplement to, or update of, the UKLA Prospectus if it is
required, or has reasonable grounds to believe that it is required, to do
so in order to comply with Section 87G of the Financial Services and
Markets Act 2000. For the purposes of this clause, "Significant" means
significant for the purposes of making an informed assessment of (A) the
assets and liabilities, financial position, profits and losses and
prospects of the Province and (B) the rights attaching to the Securities.
(v) The Province will make generally available to its security holders and to
the Representatives as soon as practicable after the close of its first
fiscal year beginning after the date hereof, statements of its revenues and
expenditures for such fiscal year which will satisfy the provisions of
Section 11(a) of the U.S. Securities Act and the applicable rules and
regulations thereunder.
(vi) The Province will furnish to the Representatives, upon request, copies of
the Registration Statement (including exhibits thereto and documents
incorporated by reference therein) 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 a dealer may be required by the U.S.
Securities Act or publication of a prospectus may be required by the
Prospectus Directive, as many copies of any Preliminary Final Prospectus,
any Issuer Free Writing Prospectus, the Final Prospectus and the UKLA
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(vii) The Province will arrange for the qualification of the Securities for
offer and sale and the determination of their eligibility for investment
under the securities laws of such states and other jurisdictions of the
United States as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided, however, that the Province shall not be obligated to
consent to general service of process under the laws of any state or other
jurisdiction.
(viii) If the Province has agreed with the relevant Representative(s) that the
UK Listing Authority will be requested to provide a certificate of approval
to the competent authority of one or more EEA Member State(s) under Article
17 and Article 18 of the Prospectus Directive, the arrangements relating to
such request (including, but not limited to, the cost of preparing any
summary required pursuant to Article 19 of the Prospectus Directive) will
be agreed between the Province and the relevant Representative(s) at the
relevant time.
In any such case, the Province undertakes that it will request the delivery
of a certificate of approval by the competent authority in the United
Kingdom to the competent authority in each such EEA Member State as agreed
between the Province and the relevant Representative(s).
Any translation of the summary pursuant to Article 19 of the Prospectus
Directive shall be accurate and complete in all material respects and shall
not be misleading, inaccurate or inconsistent when read together with the
UKLA Prospectus.
For the purposes of the above, "EEA Member State" means the member states
of the European Union, together with Iceland, Norway and Liechtenstein.
(ix) The Province will pay (i) all expenses in connection with (a) the
preparation, issue, execution and delivery of the Securities (including
fees of the registrar, fiscal agent, transfer agent and paying agents and
the fees and expenses of the Province's legal advisors), (b) the fee
incurred in filing the Registration Statement (including all amendments
thereto), any Issuer Free Writing Prospectus and any Time of Sale
Information with the SEC, (c) all costs, expenses, fees or commissions,
payable on or in connection with the approval of the UKLA Prospectus by the
UK Listing Authority and 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) the cost of copying the documents
incorporated by reference in the Time of Sale Information and the Final
Prospectus in such quantities as the Representatives may reasonably request
and the cost of delivering the same to locations designated by the
Representatives and satisfactory to the Province in its reasonable judgment
and (iii) all stamp duties or other like taxes and duties or value added
taxes payable under the laws of the United Kingdom upon and in connection
with the execution, issue and subscription of the Securities or the
execution and delivery of this Agreement and the Fiscal Agency Agreement.
Except as provided in Section 9 hereof, the Province shall not be required
to pay or bear any fees or expenses of the Underwriters.
(x) The Underwriters will pay all costs incurred in connection with the
printing of the Final Prospectus, the UKLA Prospectus and each Preliminary
Final Prospectus (including all amendments thereof or supplements thereto),
any Issuer Free Writing Prospectus and the cost of delivering the same to
locations designated by the Underwriters, the Province and each of their
counsel.
(b) Each Underwriter agrees that:
(i) It will cause the Representatives to deliver to the Province a letter prior
to the Closing Date containing the total sales of the Securities made in
the initial distribution in the United States together with an estimate of
the number of Securities reasonably expected to be sold within the United
States in secondary market transactions within 40 days of the Closing Date;
provided, however, that the Underwriters shall bear no responsibility for
any discrepancy between such estimate and the actual number of Securities
sold within the United States pursuant to such secondary market
transactions in such time period.
(ii) It has not and will not use, authorize use of, refer to, or participate in
the planning for use of, any "free writing prospectus" (as defined in Rule
405 under the U.S. Securities Act) (which term includes use of any written
information furnished to the SEC by the Province and not incorporated by
reference into the Registration Statement and any press release issued by
the Province) other than (A) the Issuer Free Writing Prospectus in the form
of Schedule I hereto or prepared pursuant to Section 5(a)(ii) above, or (B)
any "free writing prospectus" prepared by such Underwriter and provided to
and consented to by the Province in advance in writing (each such "free
writing prospectus" referred to in this clause (B), an "Underwriter Free
Writing Prospectus"); provided that the Underwriters may use a Bloomberg
term sheet in accordance with Section 5(b)(iv) below.
(iii) It has not and will not distribute any Underwriter Free Writing Prospectus
referred to in Section 5(b)(ii)(B) in a manner reasonably designed to lead
to its broad unrestricted dissemination unless the Province has consented
in advance in writing to such dissemination.
(iv) It has not and will not, without the prior written consent of the Province,
use any "free writing prospectus", that contains the final terms of the
Securities unless such terms have previously been included in an Issuer
Free Writing Prospectus filed or to be filed with the SEC; provided that
the Underwriters may use a Bloomberg term sheet that contains some or all
of the information in Schedule I hereto without the consent of the
Province; provided further that any Underwriter using such term sheet shall
notify the Province, and provide a copy of such Bloomberg term sheet to the
Province, prior to, or substantially concurrently with, the first use of
such term sheet.
(v) It is not subject to any pending proceeding under Section 8A of the U.S.
Securities Act with respect to the offering (and will promptly notify the
Province if any such proceeding against it is initiated during the period
that delivery of a prospectus by an Underwriter or a dealer may be required
by the U.S. Securities Act).
6. Selling Restrictions.
(a) European Economic Area.
In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (other than the United Kingdom, once
the UKLA Prospectus has been approved by the UK Listing Authority, each, a
"Relevant Member State"), each of the Underwriters, on behalf of itself and
each of its affiliates that participates in the initial distribution of the
Securities, has represented and agreed that with effect from and including
the date on which the Prospectus Directive is implemented in that Relevant
Member State (the "Relevant Implementation Date") it has not made and will
not make an offer of Securities, which are the subject of the offering
contemplated by the Preliminary Final Prospectus and the Final Prospectus
to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Securities which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Securities to the public
in that Relevant Member State at any time:
(i) to legal entities which are authorised or regulated to operate in the
financial markets or, if not so authorised or regulated, whose corporate
purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more
than (euro)43,000,000 and (3) an annual net turnover of more than
(euro)50,000,000, as shown in its last annual or consolidated accounts;
(iii) to fewer than 100 natural or legal persons (other than qualified investors
as defined in the Prospectus Directive) subject to obtaining the prior
consent of the relevant Underwriter or Underwriters nominated by the Issuer
for any such offer; or
(iv) in any other circumstances falling within Article 3(2) of the Prospectus
Directive; provided that no such offer of Securities shall result in a
requirement for the publication by the Province or the underwriters of a
prospectus pursuant to Article 3 of the Prospectus Directive or a
supplement to a prospectus pursuant to Article 16 of the Prospectus
Directive.
For the purposes of this provision, the expression an "offer of Securities
to the public" in relation to any Securities in any Relevant Member State
means the communication in any form and by any means of sufficient
information on the terms of the offer and the Securities to be offered so
as to enable an investor to decide to purchase or subscribe the Securities,
as the same may be varied in that Member State by any measure implementing
the Prospectus Directive in that Member State and the expression
"Prospectus Directive" means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(b) United Kingdom. Each of the Underwriters, on behalf of itself and each of
its affiliates that participates in the initial distribution of the
Securities, represents and agrees that:
(i) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000 ("FSMA")) received by it in
connection with the issue or sale of the Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Province; and
(ii) it has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Securities in, from
or otherwise involving the United Kingdom.
(c) Japan. The Securities have not been and will not be registered under the
Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as
amended) and, accordingly, the Underwriters, on behalf of themselves and
each of their respective affiliates that participates in the initial
distribution of the Securities, each undertake that they have not offered
or sold and will not offer or sell any Securities, directly or indirectly,
in Japan or to, or for the benefit of, any Japanese Person or to others for
re-offering or resale, directly or indirectly, in Japan or to or for the
benefit of any Japanese Person except pursuant to an exemption from the
registration requirements of the Financial Instruments and Exchange Law of
Japan (Law No. 25 of 1948, as amended), and under circumstances which will
result in compliance with all applicable laws, regulations and guidelines
promulgated by the relevant Japanese governmental and regulatory
authorities and in effect at the relevant time. For the purposes of this
paragraph, "Japanese Person" shall mean any person resident in Japan,
including any corporation or other entity organized under the laws of
Japan. As part of the offering of the Securities, the Underwriters may
offer the Securities in Japan to a list of 49 offerees in accordance with
this Section 6(c).
(d) Hong Kong. Each of the Underwriters, on behalf of itself and each of its
affiliates that participates in the initial distribution of the Securities,
represents and agrees that (1) it has not offered or sold and will not
offer or sell in Hong Kong, by means of any document, any Securities other
than (i) to "professional investors" within the meaning of the Securities
and Futures Ordinance (Cap. 571) of Hong Kong ("SFO") and any rule made
under the SFO, or (ii) in other circumstances which do not result in the
document being a "prospectus" within the meaning of the Companies Ordinance
(Cap. 32) of Hong Kong or which do not constitute an offer to the public
within the meaning of that Ordinance; and (2) it has not issued or had in
its possession for the purposes of issue, and will not issue or have in its
possession for the purposes of issue, whether in Hong Kong or elsewhere,
any advertisement, invitation or document relating to the Securities, which
is directed at, or the contents of which are likely to be accessed or read
by, the public in Hong Kong (except if permitted to do so under the
securities laws of Hong Kong) other than with respect to Securities which
are intended to be disposed of only to persons outside Hong Kong or only
"professional investors" within the meaning of the SFO and any rules made
thereunder.
(e) Sale and Distribution. In addition to the provisions of Sections 6(a), (b),
(c) and (d) above, each of the Underwriters, on behalf of itself and each
of its respective affiliates that participates in the initial distribution
of the Securities, represents to and agrees with the Province that it and
each of its respective affiliates (i) has not offered, sold or delivered
and will not offer, sell or deliver, directly or indirectly, any of the
Securities or distribute the Basic Prospectus, any Preliminary Final
Prospectus, the Final Prospectus, the Time of Sale Information, any "free
writing 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 knowledge and belief, after reasonable
investigation, 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, and (ii) notwithstanding
the foregoing clause (i), will not distribute any Preliminary Final
Prospectus or the other Time of Sale Information outside the United States.
(f) Authorizations. Without prejudice to the provisions of Sections 6(a), (b),
(c), (d), and (e) 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 5(a)(vii), the Province
shall not have any responsibility for, and the Underwriters agree with the
Province that the Underwriters and their respective affiliates will obtain,
any consent, approval or authorization required by them for the
subscription, offer, sale or delivery by them of any of the Securities
under the laws and regulations in force in any jurisdiction to which they
are subject or in or from which they make such subscription, offer, sale or
delivery of any of the Securities.
7. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Province contained
herein as of the date hereof, as of the date of the effectiveness of any
amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein)
and as of the Closing Date, to the accuracy of the statements of the
Province made in any certificates pursuant to the provisions hereof, to the
performance by the Province of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened; and the Final
Prospectus shall have been filed with the SEC pursuant to Rule 424 not
later than 5:00 P.M., New York City time, on the second business day
following the date hereof or transmitted by a means reasonably calculated
to result in filing with the SEC by such date; and each Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the U.S. Securities
Act, shall have been filed with the SEC under the U.S. Securities Act.
(b) The Province shall have furnished to the Representatives, on behalf of the
Underwriters, on or prior to the Closing Date, a written opinion dated the
Closing Date of the Deputy Attorney General, Assistant Deputy Attorney
General, Acting Assistant Deputy Attorney General of the Province or any
solicitor who is an employee of the Crown and seconded to the Legal
Services Branch, Ministry of Finance and Ministry of Revenue, addressed to
the Minister of Finance of the Province to the effect that, based on the
assumptions and subject to the qualifications set forth therein:
(i) this Agreement has been duly authorized, executed and delivered by the
Province in accordance with the laws of the Province and the Order or
Orders of the Lieutenant Governor in Council applicable thereto, and
constitutes a legal, valid and binding agreement of the Province
enforceable in accordance with its terms;
(ii) the Fiscal Agency Agreement has been duly authorized, executed and
delivered by the Province in accordance with the laws of the Province and
the Order or Orders of the Lieutenant Governor in Council applicable
thereto, and, assuming due execution and delivery by the Fiscal Agent,
constitutes a legal, valid and binding agreement of the Province
enforceable in accordance with its terms;
(iii) the Securities have been duly authorized and the Global Securities have
been duly executed by the Province in accordance with the laws of the
Province and the Order or Orders of the Lieutenant Governor in Council
applicable thereto, and, when authenticated in accordance with the
provisions of the Fiscal Agency Agreement and delivered to and paid for by
the Underwriters pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Province, enforceable in accordance with
their terms;
(iv) the statements in the Preliminary Final Prospectus and the Final Prospectus
under the headings "Description of Debt Securities and Warrants — Canadian
Income Tax Considerations" and "Taxation — Canadian Taxation" are accurate
in all material respects subject to the qualifications therein stated;
(v) the payment of principal of and interest on the Securities will be a charge
on and payable out of the Consolidated Revenue Fund of the Province of
Ontario (as defined in the Financial Administration Act (Ontario));
(vi) no authorization, consent, waiver or approval of, or filing, registration,
qualification or recording with, any governmental authority of the Province
of Ontario or of Canada is required in connection with the execution,
delivery and performance by the Province of this Agreement or the Fiscal
Agency Agreement or the sale of the Securities by the Province in the
manner contemplated in this Agreement and the Final Prospectus, except for
the Order or Orders of the Lieutenant Governor in Council and an approval
under section 28 of the Financial Administration Act (Ontario), which have
been obtained;
(vii) no stamp or other similar duty or levy is payable under the laws of the
Province of Ontario or the laws of Canada applicable in the Province in
connection with the execution, delivery and performance by the Province of
this Agreement and the Fiscal Agency Agreement, or in connection with the
issue and sale of the Securities by the Province in the manner contemplated
in this Agreement, the Time of Sale Information and the Final Prospectus;
and
(viii) Her Majesty the Queen in right of Ontario may be sued in the courts of
the Province of Ontario with regard to any claims arising out of or
relating to the obligations of the Province under the Securities. No law in
the Province of Ontario requires the consent of any public official or
authority for suit to be brought or judgment to be obtained against Her
Majesty the Queen in right of Ontario arising out of or relating to the
obligations of the Province under the Securities, though in certain
circumstances prior notice and particulars of a claim must be given to Her
Majesty the Queen in right of Ontario. An amount payable by Her Majesty the
Queen in right of Ontario under an order of a court of the Province of
Ontario that is final and not subject to appeal is payable out of the
Consolidated Revenue Fund of the Province of Ontario pursuant to the
Proceedings Against the Crown Act (Ontario).
(c) The Representatives, on behalf of the Underwriters, shall have received on
the Closing Date from Shearman & Sterling LLP, United States counsel to the
Province, favorable opinions dated the Closing Date to the effect that:
(i) the statements in the Preliminary Final Prospectus, read together with the
Time of Sale Information, and the Final Prospectus under the caption
"Description of Bonds", "Clearing and Settlement" and "Underwriting", in
each case, insofar as such statements constitute summaries of documents
referred to therein, fairly summarize in all material respects the
documents referred to therein;
(ii) the statements in the Preliminary Final Prospectus, read together with the
Time of Sale Information, and the Final Prospectus under the caption
"Description of Debt Securities and Warrants — United States Income Tax
Considerations", as supplemented by "Taxation — United States Taxation",
in each case, insofar as such statements constitute summaries of legal
matters referred to therein, fairly summarize in all material respects the
legal matters referred to therein;
(iii) each of the Registration Statement and the Final Prospectus, excluding the
documents incorporated by reference therein, and any supplements or
amendments thereto (other than the financial statements and other financial
or statistical data contained therein or omitted therefrom, as to which
such counsel need not express any opinion) appears on its face to be
appropriately responsive in all material respects to the requirements of
the U.S. Securities Act and the applicable rules and regulations of the SEC
thereunder; and
(iv) each of the documents incorporated by reference in the Preliminary Final
Prospectus, read together with the Time of Sale Information, and the Final
Prospectus (other than the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel need express no opinion), except to the extent that any statement
therein is modified or superseded in the Preliminary Final Prospectus or
the Final Prospectus, at the time it was filed with the SEC, appears on its
face to be appropriately responsive in all material respects to the
requirements of the U.S. Exchange Act and the applicable rules and
regulations of the SEC thereunder.
Such counsel shall also state that although they have not verified, are not
passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Information or the Final Prospectus (including
the documents incorporated by reference therein), such counsel has,
however, generally reviewed and discussed such statements with
representatives of the Ontario Financing Authority and Ministry of Finance
of the Province and, in the course of such review and discussion, no facts
have come to such counsel's attention which gives them reason to believe
that (A) that the Registration Statement (including the documents
incorporated by reference therein, 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 it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, (B) the Final
Prospectus as amended or supplemented, if applicable (including the
documents incorporated by reference therein, 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), as of the date of such Final Prospectus as amended or
supplemented, if applicable, or the Closing Date, 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 the light of the
circumstances under which they were made, not misleading or (C) the Time of
Sale Information, at the Time of Sale (which such counsel may assume to be
the date of the Underwriting Agreement) (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), contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In giving such opinions, such counsel may rely, without independent
investigation, as to matters relating to the federal law of Canada or the
laws of the Province of Ontario, on the opinion of the Deputy Attorney
General, Assistant Deputy Attorney General, Acting Assistant Deputy
Attorney General of the Province or any solicitor who is an employee of the
Crown and seconded to the Legal Services Branch, Ministry of Finance and
Ministry of Revenue, rendered pursuant to Section 7(b) hereof.
(d) The Representatives, on behalf of the Underwriters, shall have received on
the Closing Date from Davis Polk & Wardwell, United States counsel for the
Underwriters, and Stikeman Elliott LLP, Canadian counsel for the
Underwriters, favorable opinions dated the Closing Date as to the form and
validity of the Securities and as to the proceedings and other related
matters incident to the issuance and sale of the Securities on the Closing
Date, and the Representatives, on behalf of the Underwriters, shall have
received on the Closing Date from Davis Polk & Wardwell a favorable opinion
dated the Closing Date with respect to the Registration Statement, the Time
of Sale Information and the Final Prospectus and other related matters as
the Representatives may reasonably require. In giving their opinion, Davis
Polk & Wardwell may rely upon the opinion of Stikeman Elliott LLP as to
matters of Canadian and Ontario law.
(e) The Province shall have furnished to the Representatives, on behalf of the
Underwriters, on the Closing Date a certificate of the Province, signed by
the duly authorized officer of the Province (who may rely as to proceedings
pending or contemplated upon the best of his knowledge), dated the Closing
Date, to the effect that:
(i) the representations and warranties of the Province in this Agreement are
true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date and the Province has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement,
as amended, has been issued and no proceedings for that purpose have been
instituted or, to the Province's knowledge, threatened; and
(iii) there has been no material adverse change in the financial, economic or
political conditions of the Province from those set forth in or
contemplated by the Registration Statement, the Time of Sale Information
and the Final Prospectus other than changes arising in the ordinary and
normal course.
(f) Subsequent to the execution of this Agreement and on or prior to the
Closing Date, there shall not have been any decrease in the ratings of any
of the Province's long-term debt securities by Moody's Investors Service or
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
(g) Prior to the Closing Date, the Province shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
and all obligations of the Underwriters hereunder may be cancelled at, or
at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Province in writing or by telephone
or facsimile transmission, in either case confirmed in writing.
8. Stabilization and Over-allotment. The Underwriters (or persons acting on
their behalf) may over-allot Securities provided that the aggregate
principal amount of Securities allotted does not exceed 105 percent of the
aggregate principal amount of the Securities. Any stabilisation action may
begin on or after the date on which adequate public disclosure of the terms
of the offer of the relevant Securities is made and, if begun, may be ended
at any time, but it must end no later than 30 days after the date on which
the Province received the proceeds of the issue, and 60 days after the date
of the allotment of the Securities. 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 laws and rules,
including those made pursuant to applicable United Kingdom legislation and
Regulation M under the U.S. Exchange Act (if applicable). The Province
authorises the Underwriters to make such public disclosure of information
relating to stabilisation as is required by applicable law, regulation and
guidance.
9. Indemnification and Contribution.
(a) The Province agrees to indemnify and hold harmless each Underwriter and
each of its affiliates that participates in the initial distribution of the
Securities and each person who controls any Underwriter or any such
affiliate within the meaning of either the U.S. Securities Act or the U.S.
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
laws of any jurisdiction, including but not limited to the U.S. Securities
Act, the U.S. Exchange Act or other United States Federal or state
statutory law or regulation, at common law 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 a material fact contained in the Registration Statement for
the registration of the Securities as originally filed or in any amendment
thereof, including all documents incorporated by reference, or in the Basic
Prospectus, any Preliminary Final Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information or the Final Prospectus, or in any
amendment thereof 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 agrees to reimburse, as incurred, each such indemnified
party, for any legal or other expenses reasonably incurred by them 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 any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Province by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof and (ii)
such indemnity with respect to the Basic Prospectus, any Preliminary Final
Prospectus, any Issuer Free Writing Prospectus or any Time of Sale
Information shall not enure to the benefit of any Underwriter or affiliate
thereof (or any person controlling any Underwriter or affiliate) 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
the Time of Sale Information at or prior to the sale of such Securities to
such person and the untrue statement or omission of a material fact
contained in the Basic Prospectus, any Preliminary Final Prospectus or any
Issuer Free Writing Prospectus was corrected in the Time of Sale
Information. This indemnity agreement will be in addition to any liability
which the Province may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Province:
(i) to the same extent as the foregoing indemnity from the Province to such
Underwriter, 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 or
on behalf of such Underwriter through the Representatives specifically for
use in the preparation of the documents referred to in the foregoing
indemnity;
(ii) against any and all losses, claims, damages or liabilities, joint or
several, to which the Province may become subject under the laws of any
jurisdiction, including but not limited to the U.S. Securities Act, the
U.S. Exchange Act or other United States Federal or state statutory law or
regulation, at common law 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 a material
fact contained in any document prepared by such Underwriter and distributed
by it in connection with the offering of the Securities, including any
"free writing prospectus", or which arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, and which statement or omission
is not contained in the Time of Sale Information, the Final Prospectus or
the agreed press releases; and
(iii) against any and all losses, claims, damages or liabilities, joint or
several, to which the Province may become subject arising out of or in
connection with a breach by such Underwriter (or its affiliates that
participate in the initial distribution of the Securities) of any
representation, or failure to perform or observe any agreement, contained
in Section 6 of this Agreement.
Each Underwriter, severally and not jointly, agrees to reimburse, as
incurred, any legal or other expenses reasonably incurred by the Province
in connection with investigating or defending any such loss, claim, damage,
liability or action referred to in clauses (i), (ii) and (iii) above. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Province acknowledges, for the purposes
of clause (i) above, that the statements set forth under the heading
"Underwriting" (except for the statements in the paragraphs relating to the
European Economic Area, the FSMA and the securities laws of Japan and Hong
Kong and the sentence relating to stamp taxes and other charges and
expenses of the offering) in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in any of the documents referred
to in the foregoing indemnity, and the Underwriters confirm that such
statements are correct; provided that such acknowledgement by the Province
does not extend to any "free writing prospectus" other than the Issuer Free
Writing Prospectus in the form of Schedule I hereto.
(c) Each of the Province and the Underwriters agree that the Underwriters shall
have and hold the covenants of the Province contained in this Section 9 in
respect of the Underwriters' controlling persons (as defined above) and
affiliates in trust for the benefit of their controlling persons and
affiliates. The Underwriters agree to accept the trusts in this paragraph
(c) declared and provided for and agree to enforce those covenants on
behalf of such persons.
(d) 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 in writing 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 appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action;
provided, however, 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 defend
such action on behalf of such indemnified party or parties. An indemnifying
party will not, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld or delayed),
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding. 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 parties (which
consent shall not be unreasonably withheld or delayed), settle or
compromise or consent to the entry of any judgment with respect to such
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnifying parties are actual or potential parties to such claim or
action).
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to appoint counsel to defend such action and
approval by the indemnified party of such 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 accordance
with the proviso to the first sentence of the next preceding paragraph (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 paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are
parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
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).
(e) In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) of this Section 9
is due in accordance with its terms but is for any reason held by a court
to be unavailable from the Province on grounds of policy or otherwise, the
Province and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Province and the Underwriters may be subject in such proportion
so that the Underwriters are responsible for that portion represented by
the percentage that the underwriting discount specified in Schedule II
hereto bears to the public offering price of the Securities specified in
Schedule I hereto and the Province is responsible for the balance;
provided, however, that (a) in no case shall any Underwriter be responsible
for any amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder and (b) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
U.S. Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 9, each person who controls an Underwriter within the meaning of
the U.S. Securities Act shall have the same rights to contribution as the
Underwriters, and each person who controls the Province within the meaning
of the U.S. Securities Act and each official of the Province who shall have
signed the Registration Statement shall have the same rights to
contribution as the Province. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may be made against another party or parties under this paragraph (e),
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it
or they may have hereunder or otherwise than under this paragraph (e).
10. Default by an Underwriter. 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 obligated severally to
take up and pay for (in the respective proportions which the amount of
Securities set forth opposite their names in Schedule II hereto bears to
the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, 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 set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Province. In the event of a default by any Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Province and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives or the Province, by notice given to the
Province or the Representatives, as the case may be, prior to delivery and
payment for the Securities, if prior to that time, there shall have
occurred such a change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which,
in the reasonable judgment of the Representatives or the Province, as the
case may be, is material and adverse and such changes, singly or together
with any other such change, makes it, in the reasonable judgment of the
Representatives or the Province, as the case may be, impracticable to
market the Securities on the terms and in the manner contemplated in the
Time of Sale Information or the Final Prospectus. Notwithstanding any such
termination, the provisions of Sections 9, 12, and 15 hereof shall remain
in effect.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the
Province and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Province or
any of the officers, directors or controlling persons referred to in
Section 9 hereof, and will survive delivery of and payment for the
Securities.
13. Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Representatives on behalf of the
Underwriters, will be mailed, delivered, telecopied or telegraphed and
confirmed to them care of RBC Capital Markets Corporation, One Liberty
Plaza, 165 Broadway, New York, NY, 10006, Attention: General Counsel
(Telecopier No. (212) 428-3018) or, if sent to the Province, will be
mailed, delivered, telecopied or telegraphed and confirmed at Ontario
Financing Authority, One Dundas Street West, Suite 1400, Toronto, Ontario,
M5G 1Z3, attention: Director, Capital Markets Operations, Capital Markets
Division, Ontario Financing Authority (Telecopier No. (416) 325-8111).
14. Successors and Assigns. This Agreement will enure to the benefit of and be
binding upon the parties hereto and their respective successors and
permitted assigns and the officials and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder. Neither this Agreement nor any interest or obligation in or
under this Agreement may be assigned by the Underwriters without the prior
written consent of the Province or by the Province without the prior
written consent of the Representatives on behalf of the Underwriters.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable in the Province of Ontario.
16. Counterparts. This Agreement may be executed in one or more counterparts
(including counterparts by facsimile) and when a counterpart has been
executed by each party hereto all such counterparts taken together shall
constitute one and the same agreement.
17. Advertisements. All advertisements of the issue of the Securities or
publication of such formal notice as may be required by the rules of the
Stock Exchange in connection with the listing of the securities on the
Stock Exchange shall be published in a form or forms and manner to which
the Province consents in writing prior to the date of publication. The
Province may withhold its consent in its discretion regarding the use of
any symbol in any such advertisement and the publication in which such
advertisement is to appear.
18. Time of the Essence. Time shall be of the essence in this Agreement.
19. Representation of Underwriters. In all dealings hereunder, the
Representatives shall, and have all necessary authority to, act on behalf
of each of the Underwriters, and the Province shall be entitled to act and
rely upon any statement, request, notice or agreement given by the
Representatives, jointly or individually, on behalf of any of the
Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Province and the Underwriters.
Very truly yours,
Province of Ontario
By: /s/ Irene Stich
-----------------------------------------------
Name: Irene Stich
Title: Director
Capital Markets Operations
Capital Markets Division
Ontario Financing Authority
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
RBC Capital Markets Corporation
By: /s/ Jigme Shingsar
-----------------------------------------
Authorized Signatory
Name: Jigme Shingsar
-----------------------------------
Title: Managing Director
-----------------------------------
RBC Capital Markets Corporation hereby signs for itself and on behalf of the
several other Representatives and the several Underwriters.
SCHEDULE I
Final Term Sheet
Issuer: Province of Ontario
Expected Ratings: Moody's Aa1; S&P AA; DBRS AA
Title: 3.125% Bonds due September 8, 2010
Aggregate Principal Amount: U.S.$1,500,000,000
Denominations: U.S.$5,000 and integral multiples of
U.S.$1,000 for amounts in excess of
U.S.$5,000
Trade Date: August 28, 2008
Settlement Date: September 5, 2008
Maturity: September 8, 2010
Interest Payment Dates: March 8 and September 8 of each year,
commencing with a long first coupon
payable on March 8, 2009. Interest will
accrue from September 5, 2008.
Spread to Treasury: CT2 + 85.5 basis points
Benchmark Treasury: UST 2.375% due August 31, 2010
Treasury Spot/Yield: 2.371%
Yield to Maturity: 3.226% semi annual
Interest Rate: 3.125%
Public Offering Price: 99.805% plus accrued interest from September 5, 2008
if settlement occurs after that date
Day Count Convention: 30/360
Underwriters: HSBC Securities (USA) Inc.
Merrill Lynch International
RBC Capital Markets Corporation
CIBC World Markets Corp.
National Bank Financial Inc.
Scotia Capital (USA) Inc.
The Toronto-Dominion Bank
Bank of Montreal, London Branch
Barclays Capital Inc.
BNP Paribas Securities Corp.
Citigroup Global Markets Inc.
Credit Suisse Securities (Europe) Limited
Deutsche Bank Securities Inc.
J.P. Morgan Securities Ltd.
UBS Securities LLC
Prospectus and Prospectus Supplement: Prospectus dated as of June 12, 2008, and Preliminary
Prospectus Supplement dated as of August 27, 2008
http://www.sec.gov/Archives/edgar/data/74615/000090956708000973/o41070e424b2.htm
CUSIP# / ISIN#: 683234A32/ US683234A329
Listing: Admission to the United Kingdom Listing Authority's Official List and to
trading on the London Stock Exchange's regulated market may be completed
following settlement on a best efforts basis.
Legends: The Issuer has filed a registration statement (including a prospectus)
with the SEC for the offering to which this communication relates. Before
you invest, you should read the prospectus in that registration statement
and other documents the Issuer has filed with the SEC for more complete
information about the Issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the Issuer, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus if you request it by
calling HSBC at 1-866-811-8049, Merrill Lynch & Co. at 1-800-248-3580, or
RBC Capital Markets at 1-866-375-6829.
European Economic Area Legends: If and to the extent that this announcement is communicated
in, or the offer of the bonds to which it relates is made
in, any European Economic Area Member State that has
implemented the Prospectus Directive (2003/71/EC) (other
than the United Kingdom, once the UKLA Prospectus as defined
below has been approved by the Financial Services
Authority), this announcement and the offer are only
addressed to and directed at persons in that Member State
who are qualified investors within the meaning of the
Prospectus Directive (or who are other persons to whom the
offer may lawfully be addressed) and must not be acted upon
by other persons in that Member State.
This document does not constitute or form part of any offer or
invitation to sell these bonds and is not soliciting any offer to
buy these bonds in any jurisdiction where such offer or sale is
not permitted. This document is, for the purposes of Article 15
of the Prospectus Directive 2003/71/EC (the "Prospectus
Directive"), not a prospectus but an advertisement, and investors
in the European Economic Area should not subscribe for or
purchase these bonds once admitted to trading on the regulated
market of the London Stock Exchange plc except on the basis of
information in the UKLA Prospectus (as defined below). The
Province intends to file a single prospectus (the "UKLA
Prospectus") pursuant to Section 5.3 of the Prospectus Directive
with the Financial Services Authority in its capacity as
competent authority under the Financial Services and Markets Act
2000, as amended, for the purpose of having these bonds admitted
to trading on the regulated market of the London Stock Exchange
plc as soon as possible after closing of this issue. In
compliance with the Prospectus Directive, the UKLA Prospectus
will be published in due course, subject to its approval by the
United Kingdom Listing Authority, and investors will be able to
obtain a copy of the UKLA Prospectus from the office of the
Province at the Ontario Financing Authority, One Dundas Street
West, Suite 1400, Toronto, Ontario, Canada M5G 1Z3 and the London
paying agent, The Bank of New York Mellon, One Canada Square,
London E14 5AL, England. Investors in the European Economic Area
should not subscribe for any bonds referred to in this
advertisement except on the basis of information in the UKLA
Prospectus.
Other: ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE
NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE
DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION
BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM
SCHEDULE II
Principal Amount
of Securities to
Underwriter be Purchased
----------- ------------
HSBC Securities (USA) Inc. U.S.$ 390,000,000
Merrill Lynch International 390,000,000
RBC Capital Markets Corporation 390,000,000
CIBC World Markets Corp. 52,500,000
National Bank Financial Inc. 52,500,000
Scotia Capital (USA) Inc. 52,500,000
The Toronto-Dominion Bank 52,500,000
Bank of Montreal, London Branch 15,000,000
Barclays Capital Inc. 15,000,000
BNP Paribas Securities Corp. 15,000,000
Citigroup Global Markets Inc. 15,000,000
Credit Suisse Securities (Europe) Limited 15,000,000
Deutsche Bank Securities Inc. 15,000,000
J.P. Morgan Securities Ltd. 15,000,000
UBS Limited 15,000,000
Total U.S.$1,500,000,000
=======================
Purchase Price (include 99.755% plus accrued interest from September 5, 2008
accrued interest or if settlement occurs after that date
amortization, if any,
minus underwriting discount):
Underwriting Discount: 0.05%
OPINION OF THE LEGAL COUNSEL
[ONTARIO LOGO GRAPHIC OMITTED]
Ministry of the Ministère du
Attorney General Procureur général
Legal Services Branch Direction des services juridiques
Ministry of Finance Ministère des Finances
Ministry of Revenue Ministère du Revenu
777 Bay Street 777 rue Bay
11th Floor 11e etage
Toronto ON M5G 2C8 Toronto ON M5G 2C8
Telephone: (416) 325-1456 Téléphone: (416) 325-1456
Facsimile: (416) 325-1460 Télécopieur: (416) 325-1460
Kristina.Knopp@Ontario.ca
September 5, 2008
The Honourable Dwight Duncan
Minister of Finance
7 Queen's Park Crescent East
7th Floor, Frost Building South
Toronto, Ontario
M7A 1Y7
Dear Minister:
Subject: Province of Ontario Issue of U.S. $1,500,000,000
3.125% Bonds due September 8, 2010
________________________________________________________________________________
I am counsel to the Province of Ontario (the "Province") in connection with
the issue of 3.125% Bonds due September 8, 2010 of the Province in the aggregate
principal amount of U.S. $1,500,000,000 (the "Bonds") and the sale of the Bonds
by the Province pursuant to an underwriting agreement dated as of August 28,
2008, (the "Underwriting Agreement"), between the Province and the Underwriters
named therein.
This opinion is being delivered pursuant to paragraph 7(b) of the
Underwriting Agreement. Terms used but not defined herein shall have the
meanings ascribed thereto in the Underwriting Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of the following:
(a) the Underwriting Agreement;
(b) a fiscal agency agreement dated as of September 5, 2008, (the "Fiscal
Agency Agreement"), between the Province and The Bank of New York Mellon,
including the forms of global bonds appended thereto;
(c) the supplemented form of prospectus of the Province, including the Basic
Prospectus as so supplemented and the documents incorporated by reference
therein, dated August 28, 2008, relating to the offering and sale of the
Bonds (the "Final Prospectus"), and the preliminary form of the Final
Prospectus dated August 27, 2008 (the "Preliminary Final Prospectus");
(d) the Financial Administration Act (Ontario);
(e) the Capital Investment Plan Act, 1993 (Ontario);
(f) the Legislation Act, 2006 (Ontario);
(g) the Proceedings Against the Crown Act (Ontario);
(h) the Currency Act (Canada);
(i) a certified copy of the Order of the Lieutenant Governor in Council of the
Province of Ontario numbered O.C. 138/2008 made on February 13, 2008
pursuant to the Financial Administration Act (Ontario), (the "Order in
Council") authorizing the issue and sale of the Bonds;
(j) a certificate of the Province dated September 5, 2008 as to the incumbency
of certain representatives of the Province;
(k) a certificate of the Province dated September 5, 2008 relating to the
borrowing authority remaining under the Order in Council;
(l) a certificate of the Province dated September 5, 2008 related to the
approval required under section 28 of the Financial Administration Act
(Ontario);
(m) a written order of the Province to the Registrar relating to the
authentication and delivery of the Global Bonds (as such term is defined in
the Fiscal Agency Agreement); and
(n) the Global Bonds dated September 5, 2008, executed by and sealed on behalf
of the Province.
I have also examined such certificates of public officials and such other
certificates, documents and records and such matters of law as I have considered
necessary as a basis for or relevant to the opinions hereinafter expressed.
For the purposes of this opinion, I have assumed, with regard to all
documents examined by me, the genuineness of all signatures, the authenticity of
all documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed,
telecopies or photostatic copies. I have also assumed, for the purposes of the
opinions expressed in paragraphs 1 and 2 below, the due execution and delivery
of all agreements by the parties thereto other than the Province.
This opinion is based upon legislation as in effect on the date hereof and
is limited to the laws of the Province of Ontario and the federal laws of Canada
applicable in Ontario. I have assumed that, insofar as any obligation is to be
performed in any jurisdiction outside Ontario, its performance will not be
illegal or ineffective by virtue of the laws of that jurisdiction.
I have also assumed that, for the purposes of the opinions expressed in
paragraphs 1 and 6 below, the Underwriters, and each of their affiliates that
participate in the initial distribution of the Bonds in Ontario, will at all
times comply with the selling restrictions specified in Section 6(e) of the
Underwriting Agreement as they relate to Ontario and have relied on the
undertaking of the Underwriters in this regard.
The opinions given in paragraphs 1, 2, 3, 5 and 8 below are subject to the
following limitations and qualifications:
(A) the enforceability of Underwriting Agreement may be limited by general
equitable principles;
(B) the availability of equitable remedies is in the discretion of a court of
competent jurisdiction (subject to further qualifications below);
(C) pursuant to the Currency Act (Canada) a judgment by a court of the Province
of Ontario must be awarded in Canadian currency and such judgment may be
based on a rate of exchange in existence on a day other than the day of
payment;
(D) a court of the Province of Ontario may refuse to enforce any right of
indemnity or contribution under the Underwriting Agreement to the extent
such is found to be contrary to public policy, as that term is understood
under the laws of the Province of Ontario and the laws of Canada applicable
in Ontario; and
(E) a court of the Province of Ontario may not against Her Majesty the Queen in
right of Ontario:
(i) grant an injunction or make an order for specific performance,
(ii) make an order for recovery or delivery of real or personal property,
or
(iii) issue execution or attachment or process in the nature thereof, other
than garnishment in certain limited circumstances.
Subject to the foregoing, I am of the opinion that:
(1) The Underwriting Agreement has been duly authorized, executed and delivered
by the Province in accordance with the laws of the Province and the Order
in Council and constitutes a legal, valid and binding agreement of the
Province enforceable in accordance with its terms.
(2) The Fiscal Agency Agreement has been duly authorized, executed and
delivered by the Province in accordance with the laws of the Province and
the Order in Council and constitutes a legal, valid and binding agreement
of the Province enforceable in accordance with its terms.
(3) The Bonds have been duly authorized and the Global Bonds have been duly
executed by and sealed on behalf of the Province in accordance with the
laws of the Province and the Order in Council and, when the Global Bonds
are authenticated in accordance with the provisions of the Fiscal Agency
Agreement and delivered and paid for by the Underwriters pursuant to the
Underwriting Agreement, they will constitute legal, valid and binding
obligations of the Province, enforceable in accordance with their terms.
(4) The statements in the Preliminary Final Prospectus and the Final Prospectus
under the headings "Description of Debt Securities and Warrants-Canadian
Income Tax Considerations" and "Taxation- Canadian Taxation", are accurate
in all material respects, subject to the qualifications therein stated.
(5) The payment of principal of and interest on the Bonds will be a charge on
and payable out of the Consolidated Revenue Fund of the Province of Ontario
(as defined in the Financial Administration Act (Ontario)).
(6) No authorization, consent, waiver or approval of, or filing, registration,
qualification or recording with, any governmental authority of the Province
of Ontario or of Canada is required in connection with the execution,
delivery and performance by the Province of the Underwriting Agreement, the
Fiscal Agency Agreement or the sale of the Bonds by the Province in the
manner contemplated in the Underwriting Agreement and the Final Prospectus,
except for the Order in Council and the approval under section 28 of the
Financial Administration Act (Ontario), which have been obtained.
(7) No stamp or other similar duty or levy is payable under the laws of the
Province of Ontario or the laws of Canada applicable in the Province in
connection with the execution, delivery and performance by the Province of
the Underwriting Agreement, the Fiscal Agency Agreement or in connection
with the issue and sale of the Bonds by the Province in the manner
contemplated in the Underwriting Agreement, the Time of Sale Information
and the Final Prospectus.
(8) Her Majesty the Queen in right of Ontario may be sued in the courts of the
Province of Ontario with regard to any claims arising out of or relating to
the obligations of the Province under the Bonds. No law in the Province of
Ontario requires the consent of any public official or authority for suit
to be brought or judgment to be obtained against Her Majesty the Queen in
right of Ontario arising out of or relating to the obligations of the
Province under the Bonds, though in certain circumstances prior notice and
particulars of a claim must be given to Her Majesty the Queen in right of
Ontario. An amount payable by Her Majesty the Queen in right of Ontario
under an order of a court of the Province of Ontario that is final and not
subject to appeal is payable out of the Consolidated Revenue Fund of the
Province of Ontario pursuant to the Proceedings Against the Crown Act
(Ontario).
By reason of the matters aforesaid, I hereby advise that each of the said
Bonds of the Province is not inconsistent with any overriding law in force in
the Province and that there is no requirement of the law applicable in the
Province which has not been met or fulfilled.
This opinion may be delivered to the Underwriters who may rely thereon in
connection with the transactions contemplated under the Underwriting Agreement
to the same extent as if such opinion were addressed to them. In this regard, I
wish to call to the attention of the Underwriters that, pursuant to section 43
of the Financial Administration Act (Ontario), where, in the opinion of the
Minister of Finance of Ontario, a person is indebted to the Crown in right of
Ontario or in right of Canada or any agency of the Crown in any specific sum of
money, the Minister has the discretion to retain by way of deduction or set-off,
out of money that is due and payable by the Province to that person, such sum as
the Minister considers fit in the circumstances to be applied against such
indebtedness of that person.
I 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, 2007,
which annual report is incorporated by reference into Registration Statement No.
333-151612 filed with the Securities and Exchange Commission of the United
States of America.
Yours truly,
/s/ Kristina Knopp
------------------------------
Kristina Knopp
Legal Counsel
Legal Services Branch
Ministry of Finance and
Ministry of Revenue
Schedule of Expenses
SCHEDULE OF EXPENSES
It is estimated that the expenses of the Province of Ontario in connection
with the sale of the Bonds will be as follows:
Securities and Exchange Commission fee.........................U.S.$ 24,800.00
Printing expenses...........................................................0.00
Fiscal Agent, Paying Agent and
DTC Custodian fees and expenses....................................$ 5,000.00
Legal fees and expenses............................................$ 55,000.00
Rating Agency fees and expenses....................................$ 20,450.00
Listing Agent fees and expenses....................................$ 18,150.00
Underwriters' expense reimbursement.........................................0.00
__________________
T0TAL U.S.$ 123,400.00
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