UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM T-3/A
(Amendment No. 1)
APPLICATION FOR QUALIFICATION OF INDENTURE
UNDER THE
TRUST INDENTURE ACT OF 1939
BANRO CORPORATION*
(“Company”)
BANRO GROUP (BARBADOS) LIMITED*
NAMOYA (BARBADOS) LIMITED
BANRO CONGO (BARBADOS) LIMITED
LUGUSHWA (BARBADOS) LIMITED
KAMITUGA (BARBADOS) LIMITED
TWANGIZA (BARBADOS) LIMITED
BANRO
CONGO MINING SA
KAMITUGA MINING SA
LUGUSHWA MINING SA
NAMOYA
MINING SA
TWANGIZA MINING SA
(
Names of Applicants
)
1 First Canadian Place
100 King St. West, Suite 7070
Toronto, Ontario
Canada M5X 1E3
(
Address of
Principal Executive Offices of the Company)
SECURITIES TO BE ISSUED UNDER THE
INDENTURE TO BE
QUALIFIED
|
Title of
Class
|
|
Amount
|
|
10% Secured Notes due 2021
|
|
US$197,500,000 aggregate principal amount
|
*Pursuant to the Recapitalization referred to herein and
immediately following the issuance of the 10% Secured Notes due 2021 (the
“Notes”), Banro Corporation will assign, and Banro Group (Barbados) Limited (a
direct wholly-owned subsidiary of Banro Corporation) will assume, all of Banro
Corporation’s rights and obligations with respect to the Notes, and Banro
Corporation will fully and unconditionally guarantee the Notes.
1
Approximate date of proposed
issuance: On the consummation date of the Recapitalization referred to herein,
which the Company expects will occur in April 2017, and following the
effectiveness of this Application for Qualification.
Name and address of agent for service:
DL Services
Inc.
701 5th
Avenue, Suite 6100
Seattle,
WA 98104-7043
(206) 903-8800
With copies to:
|
David Knight
|
Christopher J. Barry, Esq.
|
|
Norton Rose Fulbright Canada LLP
|
Erin McCrady, Esq.
|
|
Suite 3800, Royal Bank Plaza
|
Dorsey & Whitney LLP
|
|
South Tower, 200 Bay Street
|
701 Fifth Avenue, Suite 6100
|
|
P.O. Box 84
|
Seattle, Washington 98104
|
|
Toronto Ontario M5J 2Z4
|
(206) 903-8800
|
|
Canada
|
|
|
(416) 216-4000
|
|
The Applicants hereby amend this application for
qualification on such date or dates as may be necessary to delay its
effectiveness until (i) the 20th day after the filing of an amendment which
specifically states that it shall supersede this application, or (ii) such date
as the Securities and Exchange Commission, acting pursuant to Section 307(c) of
the Trust Indenture Act of 1939, may determine upon the written request of the
Applicants.
2
EXPLANATORY NOTE
This Amendment No. 1 (this “
Amendment
”) to Form T-3,
initially filed with the Securities and Exchange Commission on March 3, 2017
(File No. 022-29039) (the “
Application
”), is being filed on behalf of
Banro Corporation (the “
Company
”) and the other applicants listed above
(collectively, the “
Applicants
”). The purpose of this Amendment is to
file the Exhibits that are filed herewith and to update the Contents of
Application for Qualification and the Exhibit Index.
GENERAL
The following table lists each Applicant, its form of
organization and its jurisdiction of incorporation. Except for the Company and
Banro Corp (Barbados) Limited, a direct wholly-owned subsidiary of the Company
(“
BGB
”), each
of the following entities shall be referred to herein collectively as the
“
Guarantors
.” The Company, BGB and the Guarantors shall be referred to
collectively as the “
Applicants
.”
|
Name
of Applicant
|
Form of Organization
|
Jurisdiction of Incorporation or Organization
|
|
Banro Corporation
|
Corporation
|
Canada
|
|
Banro Group
(Barbados) Limited
|
Company
|
Barbados
|
|
Namoya (Barbados)
Limited
|
Company
|
Barbados
|
Banro Congo (Barbados)
Limited
|
Company
|
Barbados
|
|
Lugushwa
(Barbados) Limited
|
Company
|
Barbados
|
|
Kamituga
(Barbados) Limited
|
Company
|
Barbados
|
|
Twangiza
(Barbados) Limited
|
Company
|
Barbados
|
|
Namoya Mining S.A.
|
Limited Liability Company
|
Democratic Republic of the Congo
|
|
Banro Congo Mining
S.A.
|
Limited Liability Company
|
Democratic Republic of the Congo
|
|
Lugushwa Mining
S.A.
|
Limited Liability Company
|
Democratic Republic of the Congo
|
|
Kamituga Mining
S.A.
|
Limited Liability Company
|
Democratic Republic of the Congo
|
|
Twangiza Mining
S.A.
|
Limited Liability Company
|
Democratic Republic of the Congo
|
|
2.
|
Securities Act Exemption
Applicable
|
The Applicants intend to effect a recapitalization (the
“
Recapitalization
”) by way of a plan of arrangement (the “
Plan
”)
under Section 192 of the
Canadian Business Corporations Act
, as described
in the management information circular, dated February 27, 2017, incorporated by
reference herein and attached hereto as Exhibit T3E (the “
Circular
”),
pursuant to which in exchange for all of their right, title and interest in and
to all amounts owing on account of principal pursuant to and under the Company’s
10% Senior Secured Notes due 2017 (the “
Existing Notes
” and the holders
of the Existing Notes being, collectively, the “
Noteholders
”) and the
term loan facility agreement dated December 31, 2015 (the “
Term Loan
”),
among Namoya Mining S.A. (as borrower), the Company and certain of its
subsidiaries (as guarantors), and the lenders party thereto (the
“
Lenders
” to have the meaning ascribed to it in such term loan facility
agreement), the Noteholders and the Lenders will receive $197,500,000 aggregate
principal amount of 10% Secured Notes due 2021 (the “
Notes
”) and the
related guarantees and/or additional consideration as more fully described in
the Circular. Pursuant to the Recapitalization and immediately following the
issuance of the Notes, the Company will assign, and BGB will
assume, all of the Company’s rights and obligations with respect to the Notes,
and the Company will fully and unconditionally guarantee the Notes.
3
The Notes will be issued under the 10% Secured Notes Indenture
(the “
Indenture
”) to be qualified under the Trust Indenture Act of 1939,
as amended (the “
Trust Indenture Act
”), by this Application. This
Application and the Indenture may be amended prior to such effectiveness as part
of the qualification process in order to comply with requirements of the Trust
Indenture Act or the U.S. Securities and Exchange Commission. For more detailed
information on the Indenture, see Item 8 of this Application.
The Recapitalization is being effected by the Company in
reliance on the exemption from the registration requirements of the U.S.
Securities Act of 1933, as amended (the “
Securities Act
”), afforded by
Section 3(a)(10) thereof. Section 3(a)(10) of the Securities Act provides an
exemption from the registration provisions of the Securities Act for, in
relevant part:
“… any security which is issued in
exchange for one or more bona fide outstanding securities, claims or property
interests where the terms and conditions of such issuance are approved, after a
hearing upon the fairness of such terms and conditions at which all persons to
whom it is proposed to issue securities in such exchange shall have the right to
appear, by any court…”
The three main elements of the Section 3(a)(10) exemption are:
(a) an exchange of outstanding securities, claims or property interests, (b) a
fairness hearing, and (c) court approval of the issuance and exchange. As
described in the Circular, each of these elements will be satisfied in
connection with the issuance of the Notes.
|
(a)
|
Exchange of Securities
: Pursuant to the
Recapitalization, the Notes and the related guarantees will be issued in
exchange for the Existing Notes and the Term Loan.
|
|
|
|
|
(b)
|
Fairness Hearing
: Respective meetings of
securityholders of the Company were held on March 31, 2017 for the purpose of voting on the
Plan (collectively, the “
Meetings
”). An application was previously
made to the Ontario Superior Court of Justice (Commercial List) (the
“
Court
”) for a hearing for the purpose of obtaining a final order
of the Court approving the Plan (the
“Fairness Hearing”
). Notice of
the date and time of the Fairness Hearing has been provided to all
Noteholders and the Lenders in the Circular. At the Fairness Hearing, the
Court considered, among other things, the fairness and reasonableness of
the Plan to affected securityholders, including the issuance of Notes and
the related guarantees in exchange for Existing Notes and the Term Loan,
and the assignment by the Company, and the assumption by BGB, of all of
the Company’s rights and obligations with respect to the Notes, and the
Company’s guarantee of the Notes. Any Noteholder, Lender or other
interested party who wished to participate, or to be represented, or to
present evidence or argument, was able to do so, subject to filing with
the Court and serving upon the solicitors of the Company a notice of
appearance and satisfying any other requirements of the Court.
|
|
|
|
|
(c)
|
Court Approval
: The Court approved the Plan on
April 6, 2017. The Court ruled on the fairness of the Plan to the affected
securityholders, including the Noteholders and the Lenders. The Court had
been advised that its ruling will form the basis for claiming an exemption
from registration under the Securities Act by reason of the exemption
afforded by Section 3(a)(10) thereof.
|
AFFILIATIONS
Furnish a list or diagram of all affiliates of each
Applicant and indicate the respective percentages of voting securities or other
basis of control.
|
(a)
|
An organizational chart showing the Company’s direct and
indirect subsidiaries is contained in Exhibit 99.1 and incorporated by
reference herein.
|
|
|
|
|
(b)
|
Directors and officers of the Applicants may be deemed to
be “affiliates” of the respective Applicant by virtue of their positions
with the respective Applicant. See Item 4, “Directors and Executive
Officers” for a list of current directors and executive officers and
changes therein as a result of the
Recapitalization.
|
4
RFW (as defined in the Circular) is currently considered an
affiliate of the Company.
As further described in the Circular, upon completion of the
Recapitalization, RFW, Gramercy (as defined in the Circular) and BlackRock (as
defined in the Circular) are expected to be considered affiliates of the
Company.
|
|
Number and Percentage
|
Number and Percentage of Common
|
|
|
of Common Shares as at
|
Shares upon Completion of the
|
|
Name and Address
|
March 30, 2017
|
Recapitalization
(1)
|
|
Gramercy
|
|
|
|
20 Dayton Avenue
|
8,294,250
2
|
334,090,531
3
|
|
Greenwich, Connecticut 06830
|
(2.73%)
|
(30.41%)
|
|
RFW
|
|
|
|
Nemours Chambers, Road
|
|
|
|
Town
|
50,000,000
4
|
353,902,322
5
|
|
Tortola, British Virgin Islands
|
(16.48%)
|
(32.21%)
|
|
BlackRock
|
18,408,000
|
150,547,371
|
|
|
(6.07%)
|
(13.70%)
|
Notes:
|
(1)
|
The maximum number and percentage of common shares of the
Company upon completion of the Recapitalization.
|
|
|
|
|
(2)
|
Does not include preferred shares of Namoya (Barbados)
Limited and Twangiza (Barbados) Limited held by Gramercy (which are
exchangeable for 33,743,234 common shares of the Company) which will be
converted into common shares of the Company upon completion of the
Recapitalization and warrants exercisable for 18,300,000 common shares of
the Company.
|
|
|
|
|
(3)
|
Does not include warrants exercisable for 18,300,000
common shares of the Company.
|
|
|
|
|
(4)
|
Does not include preferred shares of Namoya (Barbados)
Limited and Twangiza (Barbados) Limited held by RFW (which are
exchangeable for 29,256,766 common shares of the Company) which will be
converted into common shares of the Company upon completion of the
Recapitalization and warrants exercisable for 7,500,000 common shares of
the Company. RFW is currently limited in its ability to exchange all of
its exchangeable preferred shares for common shares of the Company without
common shareholders approval if such exchange would result in RFW holding
20% or more of the Company’s then issued and outstanding common
shares.
|
|
|
|
|
(5)
|
Does not include warrants exercisable for 7,500,000
common shares of the Company
|
The shareholder affiliates of BGB and the Guarantors are listed in Item
5, “Principal Owners of Voting Securities.” All voting securities of
BGB and the
Guarantors are owned directly or indirectly by the Company.
MANAGEMENT AND CONTROL
|
4.
|
Directors and Executive
Officers
|
List the names and complete mailing addresses of all
directors and executive officers of the each Applicant and all persons chosen to
become directors and executive officers of each Applicant. Indicate all offices
held or to be held by each person named.
(1) Banro Corporation
The following table lists the names and offices held by
directors and executive officers of the Company as of March 30, 2017.
5
|
Name
|
Office
|
|
John Clarke
|
President, Chief Executive Officer and Director
|
|
David Langille
|
Chief
Financial Officer
|
|
Richard Brissenden
|
Chairman of the Board and Director
|
|
Peter Cowley
|
Director
|
|
Maurice Colson
|
Director
|
|
Derrick Weyrauch
|
Director
|
|
Mick Oliver
|
Director
|
|
Jiongjie Lu
|
Director
|
|
Arnold Kondrat
|
Executive Vice President
|
|
Donat Madilo
|
Senior
Vice President, Commercial & DRC Affairs
|
|
Dan Bansah
|
Head
of Projects and Operations
|
|
Geoffrey Farr
|
Vice
President, General Counsel and Corporate Secretary
|
|
Desire Sangara
|
Vice
President Government Relations
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Banro Corporation
100 King St. West, Suite 7070
Toronto, Ontario
Canada M5X 1E3
As part of the Plan, the Board of Directors of the Company (the
“
Board
”) immediately prior to the completion of the Reorganization shall
be deemed to have resigned and upon completion of the Reorganization a new Board
shall have been appointed. The new Board, upon completion of the Reorganization,
shall be initially comprised of: Richard Brissenden, John Clarke, Derrick
Weyrauch, Peter Cowley, Jiongjie Lu, Rob Rauch, Robert Alexander Rorrison and
Michael Hankin Li. The Company expects to hold its next annual meeting of
shareholders at the end of the second quarter of 2017 at which point the
Company’s common shareholders will be entitled to elect the members of the
Board.
(2) Banro Group (Barbados) Limited
The following table lists the names and offices held by all
directors and executive officers of Banro Group (Barbados) Limited as of March
30, 2017.
|
Name
|
Office
|
|
W. Peter. A.
Douglas
|
President and Director
|
|
Stephen L. Greaves
|
Secretary and Director
|
|
Donat K. Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Banro Group (Barbados) Limited
Parker House
Wildey
Business Park
Wildey Road
St. Michael BB14006
Barbados W.I.
6
(3) Namoya (Barbados) Limited
The following table lists the names and offices held by all
directors and executive officers of Namoya (Barbados) Limited as of March 30,
2017.
|
Name
|
Office
|
|
W. Peter. A.
Douglas
|
President and Director
|
|
Stephen L. Greaves
|
Secretary and Director
|
|
Donat K. Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Namoya (Barbados) Limited
Parker House Wildey Business
Park
Wildey Road
St. Michael BB14006
Barbados W.I.
(4) Banro Congo (Barbados) Limited
The following table lists the names and offices held by all
directors and executive officers of Banro Congo (Barbados) Limited as of March
30, 2017.
|
Name
|
Office
|
|
W. Peter. A.
Douglas
|
President and Director
|
|
Stephen L. Greaves
|
Secretary and Director
|
|
Donat K. Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Banro Congo (Barbados) Limited
Parker House
Wildey Business
Park
Wildey Road
St. Michael BB14006
Barbados W.I.
(5) Lugushwa (Barbados) Limited
The following table lists the names and offices held by all
directors and executive officers of Lugushwa (Barbados) Limited as of March 30,
2017.
7
|
Name
|
Office
|
|
W. Peter. A.
Douglas
|
President and Director
|
|
Stephen L. Greaves
|
Secretary and Director
|
|
Donat K. Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Lugushwa (Barbados) Limited
Parker House
Wildey Business
Park
Wildey Road
St. Michael BB14006
Barbados W.I.
(6) Kamituga (Barbados) Limited
The following table lists the names and offices held by all
directors and executive officers of Kamituga (Barbados) Limited as of March 30,
2017.
|
Name
|
Office
|
|
W. Peter. A.
Douglas
|
President and Director
|
|
Stephen L. Greaves
|
Secretary and Director
|
|
Donat K. Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Kamituga (Barbados) Limited
Parker House
Wildey
Business Park
Wildey Road
St. Michael BB14006
Barbados W.I.
(7) Twangiza (Barbados) Limited
The following table lists the names and offices held by all
directors and executive officers of Twangiza (Barbados) Limited as of March 30,
2017.
|
Name
|
Office
|
|
W. Peter. A.
Douglas
|
President and Director
|
|
Stephen L. Greaves
|
Secretary and Director
|
|
Donat K. Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Twangiza (Barbados) Limited
Parker House
Wildey
Business Park
Wildey Road
St. Michael BB14006
Barbados W.I.
8
(8) Namoya Mining S.A.
The following table lists the names and offices held by all
directors and executive officers of Namoya Mining S.A. as of March 30, 2017.
|
Name
|
Office
|
|
Christian Bawah
|
General Manager
|
|
Daniel Bansah
|
Director
|
|
Desire Sangara
|
Chairman and Director
|
|
Donat Madilo
|
Director
|
|
John Clarke
|
Director
|
|
Lambert Djunga
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Namoya Mining S.A.
14, Avenue Sergent Moke
Kinshasa/Ngaliema
Democratic Republic of the Congo
(9) Banro Congo Mining S.A.
The following table lists the names and offices held by all
directors and executive officers of Banro Congo Mining S.A. as of March 30,
2017.
|
Name
|
Office
|
|
Daniel Bansah
|
General Manager, Director
|
|
Desire Sangara
|
Chairman and Director
|
|
Donat Madilo
|
Director
|
|
John Clarke
|
Director
|
|
Lambert Djunga
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Banro Congo Mining S.A.
14, Avenue Sergent Moke
Kinshasa/Ngaliema
Democratic Republic of the Congo
(10) Lugushwa Mining S.A.
The following table lists the names and offices held by all
directors and executive officers of Lugushwa Mining S.A. as of March 30,
2017.
9
|
Name
|
Office
|
|
Peter Kersi
|
General Manager
|
|
Daniel Bansah
|
Chairman and Director
|
|
Desire Sangara
|
Director
|
|
John Clarke
|
Director
|
|
Lambert Djunga
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Lugushwa Mining S.A.
14, Avenue Sergent Moke
Kinshasa/Ngaliema
Democratic Republic of the Congo
(11) Kamituga Mining S.A.
The following table lists the names and offices held by all
directors and executive officers of Kamituga Mining S.A. as of March 30,
2017.
|
Name
|
Office
|
|
Peter Kersi
|
General Manager
|
|
Daniel Bansah
|
Chairman and Director
|
|
Desire Sangara
|
Director
|
|
John Clarke
|
Director
|
|
Donat Madilo
|
Director
|
The mailing address for each of the executive officers and
directors listed above is:
c/o Kamituga Mining S.A.
14, Avenue Sergent Moke
Kinshasa/Ngaliema
Democratic Republic of the Congo
(12) Twangiza Mining S.A.
The following table lists the names and offices held by all
directors and executive officers of Twangiza Mining S.A. as of March 30,
2017.
|
Name
|
Office
|
|
Philippe Muteba
|
General Manager
|
|
Daniel Bansah
|
Director
|
|
Desire Sangara
|
Chairman and Director
|
|
John Clarke
|
Director
|
|
Donat Madilo
|
Director
|
|
Lambert Djunga
|
Director
|
10
The mailing address for each of the executive officers and
directors listed above is:
c/o Twangiza Mining S.A.
14, Avenue Sergent Moke
Kinshasa/Ngaliema
Democratic Republic of the Congo
|
5.
|
Principal Owners of Voting
Securities
|
With respect to each person owning 10 percent or more of the
voting securities of the each Applicant, list the names and complete mailing
addresses, title of class of owned, amount owned and percentage of voting
securities owned.
The following information is as of March 30, 2017:
(1) Banro Corporation
See Item 3, “Affiliates”, above for the requested
information.
(2) Banro Group (Barbados) Limited
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Corporation
|
Common shares
|
5,000,100
|
100%
|
|
100 King St. West, Suite
|
|
|
|
|
7070
|
|
|
|
|
Toronto, Ontario
|
|
|
|
|
Canada M5X 1E3
|
|
|
|
(3) Namoya (Barbados) Limited
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Group (Barbados)
|
Common shares
|
1,000,100
|
83.3%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
|
Banro Corporation
|
Common shares
|
199,900
|
16.7%
|
|
100 King St. West, Suite
|
|
|
|
|
7070
|
|
|
|
|
Toronto, Ontario
|
|
|
|
|
Canada M5X 1E3
|
|
|
|
11
(4) Banro Congo (Barbados) Limited
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of
Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Group (Barbados)
|
Common shares
|
1,000,100
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
(5) Lugushwa (Barbados) Limited
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Group (Barbados)
|
Common shares
|
1,000,100
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
(6) Kamituga (Barbados) Limited
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Group (Barbados)
|
Common shares
|
1,000,100
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
(7) Twangiza (Barbados) Limited
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Group (Barbados)
|
Common shares
|
1,000,100
|
83.3%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
|
Banro Corporation
|
Common shares
|
199,900
|
16.7%
|
|
100 King St. West, Suite
|
|
|
|
|
7070
|
|
|
|
|
Toronto, Ontario
|
|
|
|
|
Canada M5X 1E3
|
|
|
|
12
(8) Namoya Mining S.A.
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Namoya (Barbados)
|
Shares
|
1,000,000
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
(9) Banro Congo Mining S.A.
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Banro Congo (Barbados)
|
Shares
|
1,000,000
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
(10) Lugushwa Mining S.A.
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Lugushwa (Barbados)
|
Shares
|
1,000,000
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
(11) Kamituga Mining S.A.
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Kamituga (Barbados)
|
Shares
|
1,000,000
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
13
(12) Twangiza Mining S.A.
|
Name and Complete
|
Title of Class Owned
|
Amount Owned
|
Percentage of Voting
|
|
Mailing Address
|
|
|
Securities Owned
|
|
Twangiza (Barbados)
|
Shares
|
1,000,000
|
100%
|
|
Limited
|
|
|
|
|
Parker House
|
|
|
|
|
Wildey Business Park
|
|
|
|
|
Wildey Road
|
|
|
|
|
St. Michael BB14006
|
|
|
|
|
Barbados W.I.
|
|
|
|
UNDERWRITERS
Give the name and complete mailing address of (a) each
person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
|
(a)
|
The following table sets forth the name and mailing
address of each person who, within three years prior to the date of filing
this Application, acted as an underwriter of the Applicants’ securities and
the title of each security underwritten:
|
|
|
|
|
|
None
|
|
|
|
|
(b)
|
No person is acting, or proposed to be acting, as
principal underwriter of the Notes proposed to be offered pursuant to the
Indenture.
|
CAPITAL SECURITIES
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of the Company as of March 30, 2017:
14
(1) Banro Corporation
|
Title of Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common Shares, no par value*
|
unlimited
|
303,482,336
|
|
Series A
Preference Shares
|
unlimited
|
116,000
|
|
Series B
Preference Shares
|
unlimited
|
1,200,000
|
|
10% Senior Secured Notes due 2017
|
$175,000,000
|
$175,000,000
|
* In addition, there are
issued and outstanding at March 30, 2017: (a) options outstanding to purchase up
to 16,756,100 common shares of the Company at exercise prices ranging from
CDN$0.20 to CDN$4.52; (b) 25,800,000 warrants outstanding to purchase common
shares of the Company at exercise prices ranging from CDN$0.236 to US$0.2275; and
(c) preferred shares of Namoya (Barbados) Limited and Twangiza (Barbados)
Limited which are exchangeable for 63,000,000 common shares of the Company.
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of the Company’s common shares are entitled to one
vote per common share at all meetings of shareholders. The holders of Company’s
Series A Preference Shares and Series B Preference Shares are not entitled to
vote at a meeting of common shareholders.
(2) Banro Group (Barbados) Limited
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Banro Group (Barbados) Limited as of March 30,
2017:
|
Title of
Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common shares
|
unlimited
|
5,000,100
|
|
Preferred Shares
|
unlimited
|
1,200,000
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Banro Group (Barbados) Limited’s common shares
are entitled to one vote per common share at all meetings of shareholders.
Generally, the holders of Banro Group (Barbados) Limited’s preferred shares are
not entitled to vote at a meeting of shareholders. However, so long as any
preferred shares of Banro Group (Barbados) Limited remain outstanding, Banro
Group (Barbados) Limited will not, without the affirmative vote or consent of
the holders of at least two-thirds of the outstanding preferred shares (voting
separately as a class), amend, alter or repeal, the provision of the Banro Group
(Barbados) Limited’s articles of incorporation or the rights of holders of Banro
Group (Barbados) Limited’s preferred shares or otherwise create, authorize or
issue any shares of any series or class of shares of Banro Group (Barbados)
Limited.
(3) Namoya (Barbados) Limited
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Namoya (Barbados) Limited as of March 30,
2017:
15
|
Title of Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common
shares
|
unlimited
|
1,200,000
|
|
Preferred Shares
|
25,000
|
21,533.48
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Namoya (Barbados) Limited’s common shares are
entitled to one vote per common share at all meetings of shareholders.
Generally, the holders of Namoya (Barbados) Limited’s preferred
shares are not entitled to vote at a meeting of shareholders. However, the
holders of the preferred shares of Namoya (Barbados) Limited, as a class, are
entitled to vote separately, as a class upon (a) a proposal to increase the
maximum number of preferred shares, (b) a proposal for Namoya (Barbados) Limited
to enter into a fundamental transaction and (c) a proposal for Namoya (Barbados)
Limited to approve any subsidiary entering into a fundamental transaction.
(4) Banro Congo (Barbados) Limited
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Banro Congo (Barbados) Limited as of March 30,
2017:
|
Title of
Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common shares
|
unlimited
|
1,000,100
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Banro Congo (Barbados) Limited’s common shares
are entitled to one vote per common share at all meetings of shareholders.
(5) Lugushwa (Barbados) Limited
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Lugushwa (Barbados) Limited as of March 30,
2017:
|
Title of
Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common shares
|
unlimited
|
1,000,100
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Lugushwa (Barbados) Limited’s common shares are
entitled to one vote per common share at all meetings of shareholders.
(6) Kamituga (Barbados) Limited
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Kamituga (Barbados) Limited as of March 30,
2017:
16
|
Title of
Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common shares
|
unlimited
|
1,000,100
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Kamituga (Barbados) Limited’s common shares are
entitled to one vote per common share at all meetings of shareholders.
(7) Twangiza (Barbados) Limited
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Twangiza (Barbados) Limited as of March 30,
2017:
|
Title of
Class
|
Amount Authorized
|
Amount Outstanding
|
|
Common
shares
|
unlimited
|
1,200,000
|
|
Preferred shares
|
25,000
|
21,533.48
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Twangiza (Barbados) Limited’s common shares are
entitled to one vote per common share at all meetings of shareholders.
Generally, the holders of Twangiza (Barbados) Limited’s
preferred shares are not entitled to vote at a meeting of shareholders. However,
the holders of the preferred shares of Twangiza (Barbados) Limited, as a class,
are entitled to vote separately, as a class upon (a) a proposal to increase the
maximum number of preferred shares, (b) a proposal for Twangiza (Barbados)
Limited to enter into a fundamental transaction and (c) a proposal for Twangiza
(Barbados) Limited to approve any subsidiary entering into a fundamental
transaction.
(8) Namoya Mining S.A.
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Namoya Mining S.A. as of March 30, 2017:
|
Title of
Class
|
Amount Authorized
|
Amount Outstanding
|
|
Shares
|
Not
Applicable
|
1,000,000
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Namoya Mining S.A. shares are entitled to one
vote per share at all meetings of shareholders.
(9) Banro Congo Mining S.A.
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
17
The following table sets forth information with respect to each
authorized class of securities of Banro Congo Mining S.A. as of March 30,
2017:
|
Title
of Class
|
Amount Authorized
|
Amount Outstanding
|
|
Shares
|
Not
Applicable
|
1,000,000
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Banro Congo Mining S.A. shares are entitled to
one vote per share at all meetings of shareholders.
(10) Lugushwa Mining S.A.
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Lugushwa Mining S.A. as of March 30, 2017:
|
Title
of Class
|
Amount Authorized
|
Amount Outstanding
|
|
Shares
|
Not
Applicable
|
1,000,000
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Lugushwa Mining S.A. shares are entitled to one
vote per share at all meetings of shareholders.
(11) Kamituga Mining S.A.
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Kamituga Mining S.A. as of March 30, 2017:
|
Title
of Class
|
Amount Authorized
|
Amount Outstanding
|
|
Shares
|
Not
Applicable
|
1,000,000
|
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Kamituga Mining S.A. shares are entitled to one
vote per share at all meetings of shareholders.
(12) Twangiza Mining S.A.
|
(a)
|
Furnish the following information as to each
authorized class of securities of each
Applicant
.
|
The following table sets forth information with respect to each
authorized class of securities of Twangiza Mining S.A. as of March 30, 2017:
|
Title
of Class
|
Amount Authorized
|
Amount Outstanding
|
|
Shares
|
Not
Applicable
|
1,000,000
|
18
|
(b)
|
Give a brief outline of the voting rights of each
class of voting securities referred in paragraph (a)
above
.
|
The holders of Twangiza Mining S.A. shares are entitled to one
vote per share at all meetings of shareholders.
INDENTURE SECURITIES
|
8.
|
Analysis of Indenture
Provisions
|
The Notes will be issued under the 10% Secured Notes Indenture
(the “
Indenture
”), to be dated the date of completion of the
Recapitalization, among Banro Corporation, BGB, the Guarantors and TSX Trust
Company (the “
Canadian Trustee
”) and The Bank of New York Mellon (the
“
U.S. Trustee
”) as co-trustees (together, the “
Trustees
”).
Pursuant to the Recapitalization and immediately following the issuance of the
Notes, Banro Corporation will assign,
and Banro Group (Barbados) Limited, a direct wholly-owned subsidiary of Banro
Corporation (“
BGB
”) will assume, all of Banro Corporation’s rights and
obligations with respect to the Notes, and Banro Corporation will fully and
unconditionally guarantee the Notes. For purposes of this Item 8, (i) prior to
such assignment and assumption, “Company” refers to Banro Corporation, and (ii) following such
assignment and assumption, “Company” refers to BGB and “other
Obligors” and “Guarantors” includes Banro Corporation. The following is a general
description of certain provisions of the Indenture, and the description is
qualified in its entirety by reference to the form of Indenture filed as Exhibit
T3C hereto. All capitalized and otherwise undefined terms shall have the
meanings ascribed to them in the Indenture.
|
(a)
|
Events of Default; Withholding of
Notice
|
Each of the following is an “Event of Default”:
|
|
(1)
|
default in any payment of interest on any Note when due,
continued for 30 days;
|
|
|
|
|
|
|
(2)
|
default in the payment of principal of or premium, if
any, on any Note when due at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or
otherwise;
|
|
|
|
|
|
|
(3)
|
failure by the Company or any Guarantor to comply with
its obligations under “– Certain Covenants – Merger and
Consolidation”;
|
|
|
|
|
|
|
(4)
|
failure by the Company or any Guarantor to comply for 30
days after receipt of written notice given by the Trustees or the
Holders of not less than 25% in principal amount of the then-outstanding
Notes with any of its obligations under “–Repurchase at the Option of
Holders” or “–Certain Covenants” (other than (A) a failure to purchase
Notes, which constitutes an Event of Default under clause (2) above, (B) a
failure to comply with “–Certain Covenants–Merger and Consolidation” which
constitutes an Event of Default under clause (3) above, or (C) a failure
to comply with “–Certain Covenants– Reports” or “–Certain
Covenants–Payments for Consent” which constitute Events of Default under
clause (5) below);
|
|
|
|
|
|
|
(5)
|
failure by the Company or any Guarantor to comply for 90
days after receipt of written notice given by the Trustees or the
Holders of not less than 25% in principal amount of the then-outstanding
Notes with its other agreements contained in the Indenture or the Notes to
the extent not described in (1), (2), (3) or (4) above;
|
|
|
|
|
|
|
(6)
|
default under any Indebtedness in the amount of
$8,000,000 or more for money borrowed by the Company, any other Obligor or
the Guarantors (or the payment of which is Guaranteed by the Company or
any other Obligor), that has not been cured before the earlier of (i) any
applicable cure period in the document that governs such Indebtedness and
(ii) 30 days after such default;
|
19
|
|
(7)
|
default under the Dore Loan Agreement that has not been
cured before the earlier of (i) any applicable cure period in such
agreement and (ii) 30 days after such default;
|
|
|
|
|
|
|
(8)
|
default under any Priority Lien Debt that has not been
cured before the earlier of (i) any applicable cure period in the document
that governs such Indebtedness and (ii) 30 days after such
default;
|
|
|
|
|
|
|
(9)
|
any Banro Event of Default under the Forward
Sale/Streaming Agreements (as defined therein) in respect of which has not
been cured before the earlier of (i) any applicable cure period in the
Forward Sale/Streaming Agreement and (ii) 30 days after such
default;
|
|
|
|
|
|
|
(10)
|
failure by the Company, its Subsidiaries or any Guarantor
to pay final judgments aggregating in excess of $8.0 million (or its
foreign currency equivalent) (net of any amounts that a reputable and
creditworthy insurance company has acknowledged liability for in writing),
which judgments are not paid, discharged or stayed for a period of 60 days
or more after such judgment becomes final and non-appealable;
|
|
|
|
|
|
|
(11)
|
the Company, any Obligor or any Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
|
|
|
(A)
|
commences proceedings to be adjudicated bankrupt or
insolvent;
|
|
|
|
|
|
|
(B)
|
consents to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking an arrangement of debt, reorganization, dissolution,
winding up or relief under applicable Bankruptcy Law;
|
|
|
|
|
|
|
(C)
|
consents to the appointment of a custodian, receiver,
interim receiver, receiver and manager, liquidator, assignee, trustee,
sequestrator or other similar official of it or for all or substantially
all of its property;
|
|
|
|
|
|
|
(D)
|
makes a general assignment for the benefit of its
creditors; or
|
|
|
|
|
|
|
(E)
|
the admission by it in writing of its inability to pay
its debts generally as they become due;
|
|
|
(12)
|
a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
|
|
|
(A)
|
is for relief against the Company, any other Obligor, or
any Subsidiary in a proceeding in which the Company is to be adjudicated
bankrupt or insolvent;
|
|
|
|
|
|
|
(B)
|
appoints a custodian, receiver, interim receiver,
receiver and manager, liquidator, assignee, trustee, sequestrator or other
similar official of the Company, any other Obligor or any Subsidiary for
all or substantially all of the property of the Company; or
|
|
|
|
|
|
|
(C)
|
orders the liquidation, dissolution, readjustment of
debt, reorganization or winding up of the Company, any other Obligor or
any Subsidiary;
|
and the order or decree remains
unstayed and in effect for 60 consecutive days;
|
|
(13)
|
any Note Guarantee ceases to be in full force and effect
(except as contemplated by the terms of the Indenture) or is declared null
and void in a judicial proceeding or any Guarantor denies or disaffirms
its obligations under the Indenture or its Note Guarantee; or
|
|
|
|
|
|
|
(14)
|
any security interest created by any Collateral Document
ceases to be in full force and effect (except
as permitted by the terms of the Indenture or the Collateral
Documents) or (ii) the breach or repudiation by the Company, any other Obligor
or the Guarantors, of any of their obligations under any Collateral Document;
provided
that, in the case of clauses (i) and (ii), such cessation,
breach or repudiation, individually or in the aggregate, results in Collateral
having a Fair Market Value in excess of $5.0 million not being subject to a
valid, perfected security interest.
|
20
In the event of a declaration of acceleration of the Notes
because an Event of Default described in clause (6), (7), (8), (9) or (10) of
the first paragraph of this section 8(a) has occurred and is continuing, the declaration of
acceleration of the Notes shall be automatically annulled if:
|
|
(1)
|
the default triggering such Event of Default pursuant to
clause (6), (7), (8), (9) or (10) of the first paragraph of this section
8(a) shall be
remedied or cured by the Company, any other Obligor or any Subsidiary or waived by the
holders of the relevant Indebtedness within 20 days after the declaration
of acceleration with respect thereto; or
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(2)
|
(A) the annulment of the acceleration of the Notes would
not conflict with any judgment or decree of a court of competent
jurisdiction and (B) all existing Events of Default, except nonpayment of
principal of, premium, if any, or interest on the Notes that became due
solely because of the acceleration of the Notes, have been cured or
waived.
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If an Event of Default (other than an Event of Default
specified in clause (11) or (12) of the first paragraph of this section 8(a) occurs and is
continuing, the Trustees by written notice to the Company, specifying the
Event of Default, or the Holders of at least 25% in principal amount of the then
outstanding Notes by notice to the Company and the Trustees, may, and the
Trustees at the written request of such Holders shall, declare the principal of,
premium, if any, and accrued and unpaid interest, if any, on all the Notes to be
due and payable immediately. Upon such a declaration, such principal, premium,
if any, and accrued and unpaid interest, if any, shall be due and payable
immediately. If an Event of Default specified in clause (11) or (12) of the
first paragraph of this section 8(a)occurs and is continuing, the principal of, premium, if
any, and accrued and unpaid interest, if any, on all the Notes shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustees or any Holders.
The Holders of a majority in principal amount of the then
outstanding Notes by written notice to the Trustees may on behalf of all Holders
waive any past or existing Default (except with respect to nonpayment of
principal, premium or interest) and rescind any acceleration with respect to the
Notes and its consequences under the Indenture (including any related payment
default that resulted from such acceleration),
provided
that, in the case
of the rescission of any acceleration with respect to the Notes, (1) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) all existing Events of Default (except nonpayment
of the principal of, premium, if any, and interest on the Notes that have become
due solely by such declaration of acceleration) have been cured or waived. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of the
Indenture, but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon. If a Default is deemed to occur solely
because a Default (the “Initial Default”) already existed, and such Initial
Default is subsequently cured and is not continuing, the Default or Event of
Default resulting solely because the Initial Default existed shall be deemed
cured, and shall be deemed annulled, waived and rescinded without any further
action required.
The Holders of a majority in principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustees or of exercising
any trust or power conferred on the Trustees. However, the Trustees may refuse
to follow any direction that conflicts with law or the Indenture, the Notes or
any Note Guarantee, or that the Trustees determine in good faith is unduly
prejudicial to the rights of any other Holder or that would involve the Trustees
in personal liability or expense for which the Trustees have not been offered an
indemnity reasonably satisfactory to them.
No Holder of a Note may pursue any remedy with respect to the
Indenture or the Notes unless:
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(1)
|
such Holder has previously given the Trustees written
notice that an Event of Default is continuing;
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21
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(2)
|
the Holders of at least a majority in principal amount of
the then outstanding Notes have requested the Trustees in writing to
pursue the remedy;
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(3)
|
such Holders have offered the Trustees funding and
indemnity reasonably satisfactory to the Trustees against any loss,
liability or expense;
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(4)
|
the Trustees have not complied with such request within
60 days after the receipt thereof and the offer of security or indemnity;
and
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(5)
|
the Holders of a majority in principal amount of the then
outstanding Notes have not given the Trustees a direction that, in the
opinion of the Trustees, is inconsistent with such request within such
60-day period.
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A Holder may not use the Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder, it
being understood that the Trustees do not have an affirmative duty to ascertain
whether or not any actions or forbearances by a Holder are unduly prejudicial to
other Holders.
Notwithstanding any other provision of the Indenture, the right
of any Holder to receive payment of principal, premium, if any, and interest on
its Note, on or after the respective due dates expressed or provided for in such
Note (including in connection with an Asset Disposition Offer or a Change of
Control Offer), or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
No delay or omission of the Trustees or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by Article VI of the
Indenture or by law to the Trustees or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustees or by the
Holders, as the case may be.
If a Default or an Event of Default occurs and is continuing of
which a Responsible Officer of either Trustee has received written notice
thereof in accordance with Section 7.02(i) of the Indenture, the Trustees shall
send to each Holder a notice of the Default within 90 days after it occurs.
Except in the case of an Event of Default specified in clauses (1) or (2) of the
first paragraph of this section 8(a), the Trustees may withhold from the Holders notice of any
continuing Default or an Event of Default if the Trustees determine in good
faith that withholding the notice is in the interests of the Holders.
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(b)
|
Authentication and Delivery of the Notes; Use of
Proceeds
|
At least one Officer shall execute the Notes on behalf of the
Company by manual or facsimile signature. If an Officer whose signature is on a
Note no longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose until authenticated substantially in
the form of Exhibit A to the Indenture by the manual signature of an authorized
signatory of the Canadian Trustee. The signature shall be conclusive evidence
that the Note has been duly authenticated and delivered under the Indenture. The
certification of the Canadian Trustee on Notes shall not be construed as a
representation or warranty by the Trustees as to the validity of the Indenture
or the Notes (except the due certification thereof) and the Trustees shall in no
respect be liable or answerable for the use made of the Notes or any of them or
of the consideration therefor except as otherwise specified herein.
On the Issue Date, the Canadian Trustee shall, upon receipt of
a written order of the Company signed by an Officer (an “Authentication Order”),
authenticate and deliver the Notes.
The Canadian Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Canadian Trustee may do so. Each reference in
the Indenture to authentication by the Canadian Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders.
22
There will be no proceeds from the issuance of the Notes
because the Notes and the related guarantees are being issued in exchange for
Existing Notes and the Term Loan.
|
(c)
|
Release and Substitution of Property Subject to the
Lien of the Indenture
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(1)
|
Subject to the terms of the Collateral Trust Agreement,
the Company and the Guarantors will be entitled to releases of assets
included in the Collateral from the Liens securing Obligations under the
Indenture under any one or more of the following
circumstances:
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(A)
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upon satisfaction and discharge of the Indenture pursuant
to Article 12 (Satisfaction and Discharge);
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(B)
|
upon a Legal Defeasance or Covenant Defeasance of the
Notes pursuant to Article 8 (Legal Defeasance and Covenant
Defeasance);
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(C)
|
upon payment in full and discharge of all Notes
outstanding under the Indenture and all Obligations that are outstanding,
due and payable under the Indenture at the time the Notes are paid in full
and discharged; or
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(D)
|
in whole or in part, with the consent of the Holders of
the requisite percentage of Notes in accordance Article 9 (Amendment,
Supplement and Waiver).
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(2)
|
Subject to the terms of the Collateral Trust Agreement,
upon receipt of any necessary or proper instruments of termination,
satisfaction or release prepared by the Company or any Guarantor, as the
case may be, the Collateral Agent shall execute, deliver or acknowledge
such instruments or releases to evidence the release of any Collateral
permitted to be released pursuant to the Indenture or the Collateral
Documents; provided that the Company or such Guarantor, as the case may
be, shall execute and deliver an Officer’s Certificate and an Opinion
of Counsel to the Trustees and
Collateral Agent certifying that the release of such Collateral is
permitted under the terms of the Indenture and that all conditions
precedent to such release have been satisfied.
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(3)
|
The release of any Collateral from the terms of the
Collateral Documents shall not be deemed to impair the security under the
Indenture in contravention of the provisions thereof if and to the extent
the Collateral is released pursuant to the Indenture and the Collateral
Documents.
|
The Company will comply with the provisions of TIA Sections
314(b) and Section 314(d). Any certificate or opinion required by TIA Section
314(d) may be made by an Officer except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent engineer,
appraiser or other expert. Notwithstanding anything to the contrary herein, the
Company and the Guarantors will not be required to comply with all or any
portion of TIA Section 314(d) if they determine, in good faith based on advice
of counsel (which may be internal counsel), that under the terms of that section
and/or any interpretation or guidance as to the meaning thereof of the SEC and
its staff, including '”no action” letters or exemptive orders, all or any
portion of TIA Section 314(d) is inapplicable to the released Collateral. To the
extent the Company is required to furnish to the U.S. Trustee an Opinion of
Counsel pursuant to TIA Section 314(b)(2), the Company will furnish such opinion
prior to each July 1, and an Opinion of Counsel or a reliance letter relating to
the same pursuant to TIA Section 314(b)(1) shall be delivered contemporaneously
with the execution of the Indenture.
|
(d)
|
Satisfaction and Discharge of the
Indenture
|
The Indenture will be discharged and will cease to be of
further effect as to all Notes issued thereunder, when either:
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|
(1)
|
all Notes that have been authenticated, except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for which payment money
has been deposited in trust and thereafter repaid to the Company, have
been delivered to the Canadian Trustee for cancellation; or
|
23
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(2)
|
(a)
|
all Notes not theretofore delivered to the Canadian
Trustee for cancellation have become due and payable by reason of the
giving of a notice of redemption or otherwise, will become due and payable
within one year or may be called for redemption within one year under
arrangements satisfactory to the Trustees for the giving of notice of
redemption by the Canadian Trustee in the name, and at the expense, of the
Company, and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Canadian Trustee, as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, Government
Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, without consideration of any reinvestment of interest,
to pay and discharge the entire Indebtedness on the Notes not theretofore
delivered to the Canadian Trustee for cancellation for principal, premium,
if any, and accrued interest to the date of maturity or redemption;
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(b)
|
no Default or Event of Default has occurred and is
continuing on the date of the deposit or will occur as a result of the
deposit (other than a Default or an Event of Default resulting from
borrowing of funds to be applied to such deposit and the grant of any Lien
securing such borrowing) and the deposit will not result in a breach or
violation of, or constitute a default under, any material agreement or
material instrument (other than this Indenture) to which the Company or
any Guarantor is a party or by which the Company or any Guarantor is
bound;
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(c)
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the Company has paid or caused to be paid all sums
payable by it under the Indenture; and
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(d)
|
the Company has delivered irrevocable instructions to the
Canadian Trustee to apply the deposited money toward the payment of the
Notes at maturity or the redemption date, as the case may be.
|
In addition, the Company must deliver an Officer’s Certificate
and an Opinion of Counsel (which Opinion of Counsel may be subject to customary
assumptions and exclusions) to the Trustees.
|
(e)
|
Evidence Required to be Furnished to the Trustees as
to Compliance with the Conditions and Covenants Provided for in the
Indenture
|
When any Default has occurred and is continuing under the
Indenture, or if the Trustees or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed Default, the Company shall promptly
(which shall be no more than 30 Business Days following the date on which the
Company becomes aware of such Default, receives such notice or becomes aware of
such action, as applicable) send to the Trustees an Officer’s Certificate
specifying such event, its status and what action the Company is taking or
proposes to take with respect thereto.
Give the name and complete mailing address of any person,
other than each Applicant, who is an obligor upon indenture securities.
No person, other than the Applicants, is an obligor of the
Notes.
Content of Application for Qualification
. This
application for qualification comprises:
|
(a)
|
Pages numbered 1 to 26 consecutively.
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(b)
|
The statement of eligibility of The Bank of New York
Mellon, as U.S. Trustee, under the Indenture to be qualified on Form
T-1.*
|
24
|
(c)
|
The following exhibits in addition to those filed as part
of the statement of eligibility of the U.S.
Trustee:
|
|
List of Exhibits
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Exhibit T3A-1*
|
Certificate and Articles of Continuance of the Company
(Incorporated by reference to Exhibit 1.3 of the Company’s Form 20-F filed
with the United States Securities and Exchange Commission (the “SEC”) on
April 7, 2015).
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Exhibit T3A-2*
|
Certificate and Articles of Amendment of the Company
(Incorporated by reference to Exhibit 1.4 of the Company’s Form 20-F filed
with the SEC on April 7, 2015).
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Exhibit T3A-3*
|
Certificate and Articles of Amendment of the Company
(Incorporated by reference to Exhibit 1.5 of the Company’s Form 20-F filed
with the SEC on April 7, 2015).
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Exhibit T3A-4*
|
Articles of Incorporation of Banro Group (Barbados)
Limited
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Exhibit T3A-5*
|
Articles of Amendment of Banro Group (Barbados) Limited
dated April 17, 2013
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Exhibit T3A-6*
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Articles of Incorporation of Lugushwa (Barbados) Limited
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Exhibit T3A-7*
|
Articles of Incorporation of Kamituga (Barbados) Limited
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Exhibit T3A-8*
|
Articles of Incorporation of Banro Congo (Barbados)
Limited
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Exhibit T3A-9*
|
Articles of Incorporation of Namoya (Barbados) Limited
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Exhibit T3A-10*
|
Articles of Amendment of Namoya (Barbados) Limited
dated February 25, 2014
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Exhibit T3A-11*
|
Articles of Amendment of Namoya (Barbados) Limited dated
May 22, 2015
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Exhibit T3A-12*
|
Articles of Incorporation of Twangiza (Barbados) Limited
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Exhibit T3A-13*
|
Articles of Amendment of Twangiza (Barbados) Limited
dated February 25, 2014
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Exhibit T3A-14*
|
Articles of Amendment of Twangiza (Barbados) Limited
dated May 26, 2015
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Exhibit T3A-15*
|
Articles of Association of Lugushwa Mining S.A.
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Exhibit T3A-16*
|
Articles of Association of Kamituga Mining S.A.
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Exhibit T3A-17*
|
Articles of Association of Banro Congo Mining S.A.
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Exhibit T3A-18*
|
Articles of Association of Namoya Mining S.A.
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Exhibit T3A-19*
|
Articles of Association of Twangiza Mining S.A.
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Exhibit T3B-1*
|
Bylaws No. 3 of the Company (Incorporated by reference to
Exhibit 1.1 of the Company’s Form 20-F filed with the SEC on April 7,
2015).
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Exhibit T3B-2*
|
Bylaws No. 4 of the Company (Incorporated by reference to
Exhibit 1.2 of the Company’s Form 20-F filed with the SEC on April 7,
2015).
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Exhibit T3B-3*
|
By-law No. 2 of Banro Group (Barbados) Limited
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Exhibit T3B-4*
|
By-law No. 2 of Lugushwa (Barbados) Limited
|
25
|
Exhibit T3B-5*
|
By-law No. 2 of Kamituga
(Barbados) Limited
|
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Exhibit T3B-6*
|
By-law No. 2 of Banro Congo
(Barbados) Limited
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Exhibit T3B-7*
|
By-law No. 2 of Namoya
(Barbados) Limited
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Exhibit T3B-8*
|
By-law No. 2 of Twangiza
(Barbados) Limited
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Exhibit T3C**
|
Form of Indenture among the
Company, BGB, the Guarantors, TSX Trust Company, as Canadian Trustee, and The
Bank of New York Mellon, as U.S. Trustee.
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Exhibit T3D**
|
Final Order
|
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Exhibit T3E*
|
Management Information
Circular, dated February 27, 2017, and Form of Voting Instruction Form
|
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Exhibit T3F**
|
A cross reference sheet showing
the location in the Indenture of the provisions inserted therein pursuant
to Section 310 through 318(a), inclusive, of the Trust Indenture Act.
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Exhibit 25.1*
|
Statement of Eligibility of The
Bank of New York Mellon, as U.S. Trustee relating to the form of
Indenture, on Form T-1.
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Exhibit 99.1*
|
Organization Chart of
Subsidiaries
|
*previously filed as an exhibit to the Company’s Form T-3 filed
with the SEC on March 3, 2017
**Filed herewith.
26
SIGNATURE
Pursuant to the requirements of
the Trust Indenture Act of 1939, Banro Corporation, a corporation organized and
existing under the laws of Canada, has duly caused this application to be signed
on its behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the City of Toronto, and Province of
Ontario on the 7
th
day of April, 2017.
|
(Seal)
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BANRO CORPORATION
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By:
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/s/
David Langille
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Name:
|
David Langille
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Title:
|
Chief Financial Officer
|
|
Attest:
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By:
|
/s/
Geoffrey G. Farr
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Name:
|
Geoffrey G. Farr
|
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Title:
|
Vice President, General Counsel and
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Corporate Secretary
|
SIGNATURE
Pursuant to the requirements of the
Trust Indenture Act of 1939, each of the undersigned Guarantors, companies
organized and existing under the laws of Barbados, has duly caused this
application to be signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested, all in the Parish
of St. Michael, Barbados and signed on the 7
th
day of April, 2017.
|
BANRO GROUP (BARBADOS) LIMITED
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By:
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/s/ W.
Peter A. Douglas
|
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Name:
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W. Peter A. Douglas
|
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Title:
|
President
|
|
Attest:
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By:
|
/s/
Stephen L. Greaves
|
|
Name:
|
Stephen L. Greaves, Secretary
|
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NAMOYA (BARBADOS) LIMITED
|
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By:
|
/s/ W.
Peter A. Douglas
|
|
Name:
|
W. Peter A. Douglas
|
|
Title:
|
President
|
|
Attest:
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|
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By:
|
/s/
Stephen L. Greaves
|
|
Name:
|
Stephen L. Greaves, Secretary
|
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BANRO CONGO (BARBADOS) LIMITED
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/s/ W.
Peter A. Douglas
|
|
Name:
|
W. Peter A. Douglas
|
|
Title:
|
President
|
|
Attest:
|
|
|
|
|
By:
|
/s/
Stephen L. Greaves
|
|
Name:
|
Stephen L. Greaves, Secretary
|
|
LUGUSHWA (BARBADOS) LIMITED
|
|
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|
By:
|
/s/ W.
Peter A. Douglas
|
|
Name:
|
W. Peter A. Douglas
|
|
Title:
|
President
|
|
Attest:
|
|
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|
|
By:
|
/s/
Stephen L. Greaves
|
|
Name:
|
Stephen L. Greaves, Secretary
|
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KAMITUGA (BARBADOS) LIMITED
|
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By:
|
/s/ W.
Peter A. Douglas
|
|
Name:
|
W. Peter A. Douglas
|
|
Title:
|
President
|
|
Attest:
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|
|
|
|
By:
|
/s/
Stephen L. Greaves
|
|
Name:
|
Stephen L. Greaves, Secretary
|
|
TWANGIZA (BARBADOS) LIMITED
|
|
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By:
|
/s/ W.
Peter A. Douglas
|
|
Name:
|
W. Peter A. Douglas
|
|
Title:
|
President
|
|
Attest:
|
|
|
|
|
By:
|
/s/
Stephen L. Greaves
|
|
Name:
|
Stephen L. Greaves, Secretary
|
SIGNATURE
Pursuant to the requirements of the
Trust Indenture Act of 1939, each of the undersigned Guarantors, limited
liability companies organized and existing under the laws of the Democratic
Republic of the Congo, has duly caused this application to be signed on its
behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the City of Kinshasa, Country of the
Democratic Republic of the Congo on the 7
th
day of April, 2017.
|
NAMOYA MINING S.A.
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|
By:
|
/s/
Desire Sangara
|
|
Name:
|
Desire Sangara
|
|
Title:
|
Chairman of the Board
|
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Attest:
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By:
|
/s/
Thierry K. Ntumba
|
|
Name:
|
Thierry K. Ntumba, DRC General Counsel
|
|
BANRO CONGO MINING S.A.
|
|
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|
|
By:
|
/s/
Desire Sangara
|
|
Name:
|
Desire Sangara
|
|
Title:
|
Chairman of the Board
|
|
Attest:
|
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|
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By:
|
/s/
Thierry K. Ntumba
|
|
Name:
|
Thierry K. Ntumba, DRC General Counsel
|
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LUGUSHWA MINING S.A.
|
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|
By:
|
/s/
Desire Sangara
|
|
Name:
|
Desire Sangara
|
|
Title:
|
Director
|
|
Attest:
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|
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|
|
By:
|
/s/
Thierry K. Ntumba
|
|
Name:
|
Thierry K. Ntumba, DRC General
Counsel
|
|
KAMITUGA MINING S.A.
|
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|
By:
|
/s/
Desire Sangara
|
|
Name:
|
Desire Sangara
|
|
Title:
|
Director
|
|
Attest:
|
|
|
|
|
|
|
|
By:
|
/s/
Thierry K. Ntumba
|
|
Name:
|
Thierry K. Ntumba, DRC General
Counsel
|
|
TWANGIZA MINING S.A.
|
|
|
|
|
By:
|
/s/
Desire Sangara
|
|
Name:
|
Desire Sangara
|
|
Title:
|
Chairman of the Board
|
|
Attest:
|
|
|
|
|
|
|
|
By:
|
/s/
Thierry K. Ntumba
|
|
Name:
|
Thierry K. Ntumba, DRC General
Counsel
|
BAA (AMEX:BAA)
Gráfica de Acción Histórica
De Abr 2024 a May 2024
BAA (AMEX:BAA)
Gráfica de Acción Histórica
De May 2023 a May 2024
