Closing of the Offering. 7.1 The closing of the purchase and sale of the Units provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time. 7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters: 7.2.1 receipt by the Underwriters of the following documents: 7.2.1.1 favourable legal opinions, dated the Closing Date, from the REIT’s counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing: (i) as to the due formation or incorporation, as the case may be, and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to issue the Units; (ii) as to the authorized and issued capital of the REIT; (iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries; (iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments; (v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement; (vi) that the Units have been validly issued and, upon the REIT receiving payment of the purchase price for such Units, will be outstanding as fully paid units of the REIT; (vii) that the attributes of the Units are consistent in all material respects with the description thereof in the Prospectus; (viii) that none of (a) the execution and delivery of the Relevant Contracts, (b) the performance and compliance with the terms of the Relevant Contracts, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound; (ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Contracts, and each Relevant Contract has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement; (x) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”; (xi) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units of the REIT; (xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation; (xiii) that the form and terms of the certificates representing the Units have been duly approved by the REIT; (xiv) that the Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Time; and (xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the Units, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Ontario or Canada and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of the REIT’s officers; and the Underwriters’ counsel may rely on the opinion of the REIT’s counsel as to matters which specifically relate to the REIT Entities; 7.2.1.2 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with the terms as set out in Schedule A hereto; 7.2.1.3 a certificate or certificates, dated the date of delivery and signed by the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the REIT and without personal liability: (i) that the REIT has complied with all terms and conditions of the Relevant Contracts to be complied with by the REIT at or prior to the Closing Time; (ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time; (iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened; (iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and (v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request; 7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date; 7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange; 7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Units and all matters relating thereto; and 7.2.1.7 one or more definitive certificates representing a document constituting the Units registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters; 7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably; 7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; 7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and 7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement. 7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional Units, if any, that: 7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”; 7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and 7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and 7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”. 7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that: 7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units less an amount equal to the full amount of the Underwriting Fee; 7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; 7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units or the completion of the transactions contemplated by the Transaction Documents; and 7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Closing Time. 7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that: 7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee; 7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time; 7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and 7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time. 7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 (a) The closing of the purchase and sale of the Units Debentures provided for in this Agreement shall will be completed at the offices of Fasken Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP in Calgary, Alberta at the Closing Time, or at such other place as the Corporation and the Underwriters may agree.
(b) The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions (other than subparagraph 9(b)(i)(B)) the Corporation covenants to fulfill within the times set out therein, and which conditions may be waived in writing in whole or in part by the Underwriters:
(i) receipt by the Underwriters of the following documents:
(A) favourable legal opinions, dated the Closing Date, from the Corporation’s counsel addressed to the Underwriters and to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters:
7.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the REIT’s counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters form as the Underwriters may reasonably request, including, without limiting including with respect to the generality of the foregoingfollowing matters:
(iI) as to the due formation or incorporation, as the case may beapplicable, and valid existence of the Corporation and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power and authority of the REIT Corporation to carry out its obligations under this Agreement and to create, authorize and issue the UnitsDebentures;
(iiII) as to the authorized and issued capital of the REITCorporation and each Guarantor and as to the registered ownership of such issued capital for the Corporation and each Guarantor;
(iiiIII) that except as disclosed the Corporation is a reporting issuer (or the equivalent) in the Prospectus, the REIT is the registered owner of all good standing in each of the issued and outstanding shares or units of each of its directly owned subsidiariesQualifying Jurisdictions;
(ivIV) that the Corporation and each of the Opinion Entities Guarantor has all requisite power power, capacity and capacity authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets assets, as applicable, and to carry out the transactions contemplated by the Base Prospectus, the Prospectus Supplement, any Supplementary Material, this Agreement and any Amendmentsthe Indenture;
(vV) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, Corporation and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, Guarantors to validly issue the Units Debentures to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(viVI) that the Units Debentures have been validly issued authorized for issuance by the Corporation and, upon the REIT Corporation receiving payment of the purchase price for such Unitstherefor, the Debentures will be outstanding as fully paid units of the REITvalidly issued and outstanding;
(viiVII) that the attributes of the Units Debentures are consistent in all material respects with the description thereof in the Base Prospectus, the Prospectus Supplement and any Supplementary Material;
(viiiVIII) that none of (ai) the execution and delivery of this Agreement and the Relevant Contracts, Indenture; (bii) the performance and compliance with the terms of this Agreement and the Relevant Contracts, or Indenture; and (ciii) the issue and sale of the Units results Debentures, will not result in any breach of, or is be in conflict with or constitutes constitute a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes would constitute a default under, under any of the terms, conditions or provisions of the constating documents, regulations, by by-laws or resolutions of the boards or securityholders of the Corporation or any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation Guarantor or inquiry, of any agreement or instrument, including this Agreement and the Transaction DocumentsIndenture, in respect of the Business by which the Corporation or any of the REIT Entities Guarantor is bound;
(ixIX) that all necessary action has been taken by the applicable REIT Entity Corporation and the Guarantors to authorize the execution execution, delivery and delivery performance of this Agreement and the Relevant ContractsIndenture, as applicable, and each Relevant Contract has this Agreement and the Indenture have been duly executed and delivered by the applicable REIT Entity each of them, as applicable, and constitutes a legal, valid and binding obligation of such REIT Entityeach of them, as applicable, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualificationssought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 Sections 10 and 11 of this Agreement;
(xX) confirming its opinions in the Prospectus opinion concerning tax matters under the headings “Eligibility for Investment” and heading “Certain Canadian Federal Income Tax Considerations”” in the Prospectus Supplement;
(xiXI) that Canadian Stock Transfer Valiant Trust Company at its principal office in Toronto Calgary has been duly appointed as the transfer agent and registrar for units of the REITDebentures;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiiiXII) that the form and terms of the definitive certificates representing the Units have Debentures has been duly approved and adopted by the REITCorporation and complies with the terms and conditions of the Indenture and all legal requirements applicable thereto;
(xivXIII) that the Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be Common Shares are currently listed on the Stock Exchange effective at the Closing TimeExchanges; and
(xvXIV) such other matters as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the Units, and Underwriters’ counsel may reasonably request; it being understood that such counsel may rely on on: (i) customary assumptions and qualifications and on qualifications, (ii) the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Ontario Alberta or Canada Canada, and may rely, (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the REIT’s officers; Corporation and the Guarantors;
(B) an opinion of the Underwriters’ counsel counsel, which may rely on the opinion of the REITCorporation’s counsel as to matters which specifically relate to the REIT EntitiesCorporation or the Guarantors, dated the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to those matters as the Underwriters may reasonably request relating to the distribution of the Debentures;
7.2.1.2 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with the terms as set out in Schedule A hereto;
7.2.1.3 (C) a certificate or certificates, dated the date of delivery and signed by the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, Corporation’s interim President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the REIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of the Relevant Contracts to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no orderCorporation, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(I) the Corporation has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(II) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation in any of the Qualifying Jurisdictions has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(III) since the date of the Prospectus Supplement and any Amendments thereto Supplementary Material thereto, there has been no material adverse change, financial or otherwise, to such date change in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise), ) or capital or ownership of the REIT Corporation and the Guarantors, taken as a whole, and which is not, or the REIT Entitiesis not required by Securities Laws to be, from that disclosed in or contemplated by the Prospectus Supplement or any Amendment Supplementary Material (as they existed at including the time of filingdocuments incorporated therein by reference); and
(vIV) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time, and
(V) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 (D) the bring-down comfort letter from the Auditors required to be delivered at Auditors, dated the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days date of the Closing Date;
7.2.1.5 evidence , and addressed to the Underwriters and the directors of the Corporation, in form and substance satisfactory to the Underwriters that Underwriters, acting reasonably, relating to the REIT has obtained all necessary approvals for the listing verification of the Units on Financial Information and such other information as the Stock Exchange subject only Underwriters or their counsel will reasonably request (including, without limitation, financial information, statistical information derived from accounting records and accounting data) contained in the Base Prospectus, the Prospectus Supplement and any Supplementary Material, as the case may be, and matters involving changes or developments since the respective dates of which the Financial Information is given to a date not more than two Business Days prior to the filing date of documents within such letter, which letter will be in addition to the times established by Auditors’ consent in the Stock ExchangeProspectus Supplement or any Supplementary Material;
7.2.1.6 evidence satisfactory (E) certificates dated the Closing Date, signed by appropriate officers of the Corporation addressed to the Underwriters that and their counsel, with respect to the REIT has authorized constating documents of the Corporation, all resolutions of the board of directors of the Corporation relating to the Offering and approved other actions relating to this AgreementAgreement and to the creation, allotment, issue and sale of the Debentures, the issuance incumbency and specimen signatures of signing officers and with respect to such other matters as the Units and all matters relating theretoUnderwriters may reasonably request; and
7.2.1.7 (F) one or more definitive certificates representing a document constituting the Units Debentures registered in the name of CDS & Co., or in such name or names as the Underwriters may directCDS, against payment to the REITCorporation, or as the REIT Corporation may direct, of the Purchase Price, less the full amount purchase price in respect of the Underwriting Fee payable to the Underwriters, by wire transfer, Debentures; all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 (c) the representations and warranties of the REIT Corporation contained herein being true and correct as of the Closing Time with the same force and effect as if such representations and warranties had been made at and as of the Closing Time after giving effect such time;
(d) confirmation in form acceptable to the transactions contemplated herebyUnderwriters that the Debentures have received a rating, with no change in outlook, from (i) ▇▇▇▇▇’▇ Investor Service Inc. of at least B1, and (ii) Standard and Poor’s Rating Services, a division of ▇▇▇▇▇▇-▇▇▇▇ Companies (Canada) Corporation of at least BB-, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 (e) the REIT Corporation having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
(f) the Underwriters not having previously terminated its obligations pursuant to Section 13 of this Agreement.
(g) It will be a condition precedent to the Corporation’s obligations to issue the Debentures that:
(i) the Corporation will have received funds from the Underwriters by wire transfer payable in Toronto representing the aggregate principal amount, in Canadian dollars, less an amount equal to the Underwriting Fee for such Debentures;
(ii) the Underwriters will have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that:
7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units less an amount equal to the full amount of the Underwriting Fee;
7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 (iii) no order shall will have been made and no proceedings for such purpose being pending or threatened which by any Securities Commission that restricts in any manner the distribution of the Units or Debentures;
(h) The Underwriters will provide a direction to CDS with respect to the completion crediting of the transactions contemplated Debentures to the accounts of the participants of CDS as will be designated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time Underwriters in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) writing in sufficient time prior to the Closing TimeDate to permit such crediting.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Closing of the Offering. 7.1 The closing of the purchase and sale of the Offered Units provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPGoodmans LLP in Toronto, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Ontario at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securitiesthe Lead Underwriters, on behalf of the Underwriters:
7.2.1 receipt by the Underwriters of the following documentsfollowing:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the REIT’s 's Canadian counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin Goodmans LLP, in form and from substance satisfactory to the Underwriters’ Underwriters and their counsel, Torys LLPacting reasonably, with respect to all such matters as the Underwriters may reasonably request, including, without limiting following matters: the generality creation and existence of the foregoing:
(i) REIT as to the due formation or incorporation, as the case may be, and valid existence a trust under the laws of the Province of Ontario, its jurisdiction of formation or incorporation, power and capacity to own and lease property and assets and carry on business as the case may be, of each of the REIT Entities that are shown described in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) Prospectus and as its ability to the adequacy of the power of the REIT to carry out execute, deliver and perform its obligations under this Agreement Agreement; the creation, authorization, issue, sale and to issue distribution of the Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) that the Units have been validly issued and; that, upon the REIT receiving payment of the purchase price Offering Price for such the Offered Units and Over-Allotment Units, respectively, the Units will be outstanding as fully paid units of the REIT;
(vii) ; that the attributes of the Units are consistent in all material respects with the description descriptions thereof in the Prospectus;
(viii) ; that none of (a) the execution Offered Units and delivery the Over-Allotment Units have been conditionally approved for listing by the TSXV, subject only to the fulfillment of the Relevant Contracts, (b) Standard Listing Conditions; the performance appointment of Computershare Investor Services Inc. as registrar and compliance with transfer agent for the terms of Units; the Relevant Contracts, or (c) statements concerning tax matters under the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located heading "Eligibility for Investment" in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Contractsare accurate, and each Relevant Contract has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions summary contained in the Prospectus under the headings “Eligibility for Investment” and “heading "Certain Canadian Federal Income Tax Considerations”;
(xi) that " fairly describes the principal Canadian Stock Transfer Company federal income tax considerations as at its principal office the date thereof generally applicable under the Tax Act to prospective purchasers of Units, in Toronto has been duly appointed as each case subject to the transfer agent restrictions, qualifications and registrar for units of the REIT;
(xii) assumptions set out therein; and that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws applicable securities laws of the Qualifying Jurisdictions to qualify the Units for distribution and sale to the public in each such of the Qualifying Jurisdiction Jurisdictions through investment dealers duly and properly registered under the applicable legislation securities laws of such the Qualifying Jurisdiction Jurisdictions who have complied with the relevant provisions of such applicable legislation;
(xiii) that the form and terms of the certificates representing the Units have been duly approved by the REIT;
(xiv) that the Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Timesecurities laws; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the Units, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Ontario or Canada and may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of the REIT’s 's officers; and the Underwriters’ counsel may rely on the ;
7.2.1.2 a favourable legal opinion of the REIT’s 's counsel in Quebec, BCF Avocats, dated the Closing Date and acceptable in form and substance to the Underwriters' counsel, acting reasonably, as to matters which specifically relate compliance with the laws of the Province of Quebec relating to the REIT Entitiesuse of the French language in connection with the distribution of the Units;
7.2.1.2 7.2.1.3 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as the Closing Date, from the REIT's United States counsel, ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, to the effect that no registration of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units in the United States does not require registration will be required under the United States Securities Act of 1933, as amended, provided that such offer and in connection with the offering of the Units for sale of Units in the United States is made in accordance with the terms as set out in Schedule A heretoStates;
7.2.1.3 7.2.1.4 a certificate or certificates, dated the date Closing Date and signed by those trustees and those senior officers of delivery the REIT as may be acceptable to the Underwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(i) the constating documents of the REIT;
(ii) the resolutions of the trustees of the REIT relevant to the allotment, issue and sale, as the case may be, of the Units and the authorization of this Agreement; and
(iii) the incumbency and signatures of signing officers of the REIT;
7.2.1.5 a certificate dated the Closing Date and signed by the chief executive officer and/or and the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the REIT and REIT, each without personal liability:
(i) that the REIT has complied with all terms and conditions of the Relevant Contracts this Agreement to be complied with by the REIT thereby at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; provided, however, references in such timerepresentations and warranties to "Preliminary Prospectus" shall be to "Prospectus";
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT Units has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date respective dates of the Prospectus and any Amendments thereto Supplementary Material there has been no material adverse change, financial or otherwise, to such date in the operatingassets, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent operations or otherwise), capital or ownership financial condition of the REIT or the REIT EntitiesEntities (taken as a whole), from that disclosed in the Prospectus or any Amendment (Amendment, as they existed at the time of filing)case may be; and
(v) since the date of this Agreement, no transaction or agreement has been entered into by any REIT Entity which is material to the REIT Entities (taken as to such a whole) other than as described in the Prospectus or any Supplementary Material; and all of those matters of a factual nature will in fact be true and correct as at the Underwriters and the Underwriters’ counsel may reasonably requestClosing Time;
7.2.1.4 7.2.1.6 the comfort letter letters from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date4.3;
7.2.1.5 7.2.1.7 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Offered Units and Over-Allotment Units on the Stock Exchange TSXV, subject only to the filing of documents within the times established by the Stock ExchangeStandard Listing Conditions;
7.2.1.6 7.2.1.8 evidence satisfactory to the Underwriters that the trustees of the REIT has have authorized and approved this Agreement, the issuance of the Units Units, and all matters relating thereto; and;
7.2.1.7 7.2.1.9 one or more definitive or global certificates (or at the election of the Lead Underwriters either in physical or book entry only form) representing a document constituting the Offered Units registered in the name of CDS & Co., or Co. and/or in such name or names as the Lead Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Aggregate Purchase Price, less the full amount Price net of the Underwriting Fee payable to the and Underwriters, ' expenses as contemplated in paragraph 9 by wire transfertransfer payable in Toronto; and
7.2.1.1 written undertakings of each of the senior officers and trustees of the REIT as contemplated by paragraph 15.2 hereof, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 7.2.2 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the REIT's obligations of to issue the Underwriters to purchase the Additional Offered Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that:
7.4.1 the Underwriters shall have made or delivered, delivered or caused to be made or delivered, delivered to the REIT's Canadian counsel, or as the REIT may directin trust, a wire transfer representing the Aggregate Purchase Price net of the Underwriting Fee and Underwriters' expenses as contemplated by paragraph 9 payable by the Underwriters for the Units less an amount equal to the full amount of the Underwriting FeeOffered Units;
7.4.2 7.3.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions herein contained to be complied with and satisfied by them at or prior to the Closing Time;; and
7.4.3 7.3.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units Units.
7.4 The Over-Allotment Option shall be exercisable, in whole or in part, until the completion Over-Allotment Expiry Date. The Over-Allotment Option may be exercised by the Lead Underwriters, on behalf of the transactions contemplated Underwriters, by delivery of written notice to the REIT confirming the number of Over-Allotment Units in respect of which the Over-Allotment Option is being exercised. Upon exercise of the Over- Allotment Option, the REIT shall become obligated to issue and sell and the Underwriters shall become severally obligated to purchase the total number of Over-Allotment Units as to which the Underwriters are exercising the Over- Allotment Option in accordance with their respective percentages set out in paragraph 12 hereof. The Over-Allotment Option closing time (the "Over- Allotment Closing Time") shall be determined by the Transaction Documents; Lead Underwriters on behalf of the Underwriters but, unless otherwise agreed between the Lead Underwriters and the REIT, shall not be earlier than three Business Days or later than five Business Days after the exercise of the Over-Allotment Option and
7.4.4 , in any event, shall not be earlier than the Transaction Documents Closing Date nor later than five Business Days after the Over-Allotment Expiry Date. If the Over-Allotment Option is exercised as to all or any portion of the Over- Allotment Units, certificates in definitive or global form (or at the election of the Lead Underwriters in book entry only form) for such Over-Allotment Units and any other agreements reasonably required payment therefor, shall be delivered at the Over-Allotment Closing Time in the manner, and upon the terms and conditions, set forth in paragraphs 7.1, 7.2.1.9 and 7.4 except that reference therein to the Offered Units and Closing Time shall be deemed, for the purposes of this paragraph 7.4, to refer to such Over-Allotment Units and Over-Allotment Closing Time, respectively, and the amount payable by the Underwriters to the REIT in respect of the exercise of the Over-Allotment Option shall be equal to the number of Over-Allotment Units in respect of which the Over-Allotment Option is exercised multiplied by the Offering Price, less the applicable Underwriting Fee and the expenses of the Underwriters in connection with the Over-Allotment Option pursuant to paragraph 9. If the Over-Allotment Option is exercised, the obligations of the Underwriters to purchase the Over-Allotment Units shall be conditional on the delivery by the REIT being executed by of the parties thereto on or before certificate referred to in paragraph 7.2.1.4 as of the Over-Allotment Closing Time as if references therein to Closing Time were references to Over- Allotment Closing Time and such other certificates, opinions or other documents in form and substance satisfactory to the REIT, acting Underwriters as they may reasonably and all request. The obligation of the conditions Underwriters to close the exercise of the Over-Allotment Option at the Over-Allotment Closing Time shall be conditional on the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement, with reference therein have been fulfilled (or waived) prior to "Closing Time" being deemed, for the purposes hereof, to refer to the Over-Allotment Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Initial Units provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ 800 – ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters Agents under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, the Lead Agents on behalf of the UnderwritersAgents:
7.2.1 receipt by the Underwriters Agents of the following documents:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the REIT’s REIT LP's counsel, Fasken ▇▇▇▇▇ ▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters Agents may reasonably request, including, without limiting the generality of the foregoing:
(i) as to 7.2.1.1.1 the due formation or incorporationcreation, as the case may beauthorization, issue and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each sale of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to issue the Offered Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) that the Units have been validly issued and7.2.1.1.2 that, upon the REIT receiving payment of the purchase price for such the Offered Units, the Offered Units will be outstanding as fully paid and non- assessable units of the REITREIT LP;
(vii) 7.2.1.1.3 that the attributes of the Units and Class B Units are consistent in all material respects with the description descriptions thereof in the ProspectusProspectus and comply with the REIT LP Agreement, applicable Law and Stock Exchange rules;
(viii) 7.2.1.1.4 the creation and existence of the REIT LP as a limited partnership under the laws of the Province of Ontario, its power and capacity to own and lease property and assets and carry on business as described in the Prospectus and its ability to execute, deliver and perform its obligations under the Material Agreements;
7.2.1.1.5 that none all necessary partnership action has been taken to authorize the execution, delivery and performance of (a) the Material Agreements to which the REIT LP is a party;
7.2.1.1.6 that the execution and delivery of this Agreement and each of the Relevant ContractsMaterial Agreements by the REIT LP, (b) the performance and compliance with fulfillment of the terms thereof by the REIT LP does not and will not result in a breach of the Relevant Contracts, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or under, and do not and will not create a state of facts (whether which, after notice or lapse of time or both) which constitutes , will result in a breach of or a default under, and do not and will not conflict with any of the terms, conditions or provisions of the constating documents, regulations, by laws or organizational documents or resolutions of the boards securityholders, partners or securityholders directors (as applicable), or any committee of any partners or directors (as applicable) of the REIT Entities LP or, to the actual knowledge of such counsel, any judgment, decree, order or award of any court, arbitrator or Governmental Authority having jurisdiction over the specific lawyers REIT LP;
7.2.1.1.7 the attributes of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located the securities of the other Material REIT Entities, to the extent described in the Toronto office having involvement Prospectus, are consistent in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is boundall material respects with such description;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Contracts, and each Relevant Contract has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units of the REIT;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiii) 7.2.1.1.8 that the form and terms of the certificates representing the Units have been duly approved by the REIT;
(xiv) that the Offered Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all fulfillment of the requirements Standard Listing Conditions;
7.2.1.1.9 the appointment of Computershare Trust Company of Canada as registrar and transfer agent of the Stock ExchangeUnits;
7.2.1.1.10 the enforceability of the Material Agreements to which a REIT Entity is a party;
7.2.1.1.11 the qualification of the Offered Units as investments under the heading "Eligibility for Investment" in the Prospectus, subject to the qualifications, assumptions, limitations and will be listed on understandings set out therein;
7.2.1.1.12 that all documents have been filed, all requisite proceedings have been taken and all legal requirements have been fulfilled by the Stock Exchange effective at REIT LP to qualify the Closing TimeOffered Units for distribution and sale to the public in each of the Qualifying Jurisdictions through investment dealers or brokers registered under the applicable laws of the Qualifying Jurisdictions who have complied with the relevant provisions of such applicable laws; and
(xv) as to all 7.2.1.1.13 such other legal matters opinions which may be reasonably requested by counsel to the Underwriters relating to the distribution of the UnitsAgents and their counsel, it being is understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Ontario or Canada British Columbia and may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of the REIT’s officers; and the Underwriters’ counsel may rely on the opinion an officer of the REIT’s counsel as REIT LP or other responsible persons in a position to matters which specifically relate have knowledge of such facts and their accuracy and may be entitled to the REIT Entitiesmake customary assumptions and qualifications;
7.2.1.2 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated the Closing Date, from the REIT LP’s counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, that each applicable Material REIT Entity (or each property operated thereby, as applicable) is duly registered, licensed or qualified, and has all necessary licences, permits, agreements or other authorizations of applicable Governmental Authorities, in respect of the date ownership and operation of the Initial Properties as contemplated by the Prospectus by the applicable REIT Entity and that the same will not be affected by the Offering and the other transactions contemplated herein or in the Prospectus; it is understood that such counsel may rely on which the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of British Columbia and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the REIT LP or other responsible persons in a position to have knowledge of such facts and their accuracy and may be entitled to make customary assumptions and qualifications;
7.2.1.3 a favourable legal opinion of counsel to each Material REIT Entity (other than the REIT LP), dated the Closing Time occursDate, from special United States counsel as to its authorized and issued capital and registered owner(s) thereof, that each of them is subsisting under the laws of its applicable jurisdiction of incorporation or formation, as applicable, that, as applicable, it has the power and legal capacity to own the Initial Properties and conduct its business as described in the Prospectus; that the execution and delivery of each of the Material Agreements by the Material REIT Entity, the fulfillment of the terms thereof by each of the Material REIT Entities do not and will not result in a breach of or a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with any of the terms, conditions or provisions of the constating or organizational documents or resolutions of the securityholders, partners or directors (as applicable), or any committee of partners or directors (as applicable) of any Material REIT Entity or associates or, to the REITknowledge of such counsel, any judgment, decree, order or award of any court, arbitrator or Governmental Authority having jurisdiction over any Material REIT Entity; and, if applicable, that each of the offer Material Agreements to which it is a party has been duly authorized, executed and sale delivered and constitutes a legal, valid and binding obligation of Units in the United States does not require registration under the United States Securities Act of 1933such party thereto, as amended, provided that such offer and sale of Units in the United States is made enforceable in accordance with its terms; it is understood that such counsel may rely on the terms opinions of local counsel acceptable to them as set out to matters governed by the laws of jurisdictions other than Canada and the Province of British Columbia and may rely, to the extent appropriate in Schedule A heretothe circumstances, as to matters of fact, on certificates of an officer of the applicable REIT Entity or other responsible persons in a position to have knowledge of such facts and their accuracy and may be entitled to make customary assumptions and qualifications;
7.2.1.3 7.2.1.4 a commitment to provide title insurance in respect each of the Initial Properties, in a form acceptable to the Agents and their counsel delivered in favour of the applicable REIT Entity;
7.2.1.5 a certificate or certificates, dated the date of delivery Closing Date and signed by the chief executive officer and/or and the chief financial officer of each of the REIT, Governing GP and the Managing GP or such other officers of the REIT Governing GP and the Managing GP as may be acceptable to the UnderwritersAgents, certifying on behalf of the REIT LP, the Managing GP and the Governing GP, each without personal liability:
(i) that each of the REIT LP and Managing GP has complied with all terms and conditions of the Relevant Contracts this Agreement to be complied with by the REIT thereby at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT LP and Managing GP contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such timethe Closing Time after giving effect to the transactions contemplated hereby;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT Offered Units or Units has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date respective dates of the Prospectus and any Amendments thereto Amendment there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership prospects of the REIT Entities (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the REIT EntitiesEntities (taken as a whole), from that disclosed in the Prospectus or any Amendment Amendment, as the case may be (as they existed at the time of filing); and
(v) since the date of this Agreement, no transaction or agreement has been entered into by any REIT Entity which is material to the REIT Entities (taken as to a whole) other than as described in the Prospectus or any Amendment, and such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably requeststatements shall be true in fact;
7.2.1.4 7.2.1.6 the comfort letter letters from the Auditors Auditor required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date4.3;
7.2.1.5 7.2.1.7 evidence satisfactory to the Underwriters Agents that the REIT LP has obtained all necessary approvals for the listing of the Offered Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock ExchangeStandard Listing Conditions;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Units and all matters relating thereto; and
7.2.1.7 7.2.1.8 one or more definitive global certificates representing a document constituting the Initial Units registered in the name of CDS & Co.Co. or its nominee, or in such name or names as the Underwriters Lead Agents may directdirect (or its equivalent in the non-certificated inventory system of the REIT LP's registrar and transfer agent), against payment to the REITREIT LP, or as the REIT LP may direct, of the Purchase Price, less the full amount gross proceeds of the Underwriting Offering net of the Agency Fee and the expenses of the Offering payable pursuant to paragraph 9 hereof by wire transfer payable in Vancouver; and
7.2.1.9 any other certificates, documents, comfort letters or opinions in connection with any matter related to the Underwriters, Offering which are reasonably requested by wire transferthe Agents or their counsel, all in form and substance reasonably satisfactory to the UnderwritersAgents, acting reasonably;
7.2.2 the Transaction Documents being Material Agreements shall have been executed and delivered by the parties thereto on or before the Closing Time in form and substance satisfactory to the UnderwritersAgents, acting reasonably;
7.2.3 any condition precedent to the representations and warranties completion of the transactions contemplated by the Material Agreements in favour of any REIT contained herein being true Entity shall have been fulfilled, performed or waived by the REIT LP to the satisfaction of the Agents, acting reasonably, and correct as each of the transactions contemplated by the Material Agreements to occur concurrently or immediately following the Closing Time shall have been completed or the Agents shall be satisfied that such transactions will be completed concurrently with the same force and effect as if made at and as of or immediately following the Closing Time after giving effect to the transactions contemplated herebyTime;
7.2.4 the REIT having complied with all covenants LP and satisfied all terms the Lead Agents shall each have received an executed copy of each of the Reports and conditions to be complied with a reliance letter in favour thereof as if the REIT LP and satisfied by it at or prior to Agents had each originally commissioned the Closing TimeReports; and
7.2.5 the Underwriters Agents not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the REIT LP's obligations of to issue the Underwriters to purchase the Additional Units, if any, Initial Units that:
7.3.1 the Underwriters Agents shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that:
7.4.1 the Underwriters shall have made or delivered, delivered or caused to be made or delivered, delivered to the REIT, or as the REIT may direct, LP a wire transfer representing the Purchase Price gross proceeds payable by the Underwriters Agents for the Units Initial Units, less an amount equal to the full amount Agency Fee and the expenses of the Underwriting Fee;Offering payable pursuant to paragraph 9 hereof; and
7.4.2 7.3.2 the Underwriters Agents shall have complied with the covenants and satisfied all terms and conditions herein contained to be complied with and satisfied by them at or prior to the Closing Time;.
7.4.3 no order 7.4 The Over-Allotment Option shall have been made and no proceedings for such purpose be exercisable, in whole or in part, at any one time until the Over-Allotment Expiry Date. If the Lead Agents, on behalf of the Agents, elect to exercise the Over-Allotment Option, the Lead Agents shall deliver written notice to the REIT LP confirming the number of Over-Allotment Units in respect of which the Over-Allotment Option is being pending exercised. The Over-Allotment Option closing time (the "Over-Allotment Closing Time") shall be determined by the Lead Agents on behalf of the Agents but shall not be earlier than two Business Days or threatened which restricts later than five Business Days after the exercise of the Over-Allotment Option and, in any manner event, shall not be earlier than the distribution Closing Date.
2.1. 8, except that reference therein to the Initial Units and Closing Time shall be deemed, for the purposes of this paragraph 7.4, to refer to such Over-Allotment Units and Over-Allotment Closing Time, respectively, and the amount payable by the Agents to the REIT LP in respect of the Units or the completion exercise of the transactions contemplated Over-Allotment Option shall be equal to the number of Over-Allotment Units in respect of which the Over- Allotment Option is exercised multiplied by the Transaction Documents; and
7.4.4 Offering Price, and the Transaction Documents and any other agreements reasonably required agency fee payable by the REIT being executed LP to the Agents in respect of such exercise shall be equal to 6% of the gross proceeds of such Over-Allotment Units, plus applicable taxes, if any (such fee, also the "Agency Fee"). If the Over-Allotment Option is exercised, the Over-Allotment Closing shall be conditional on the delivery by the parties thereto on or before REIT LP and Managing GP of the certificates referred to in paragraph 7.2.1.5 as of the Over-Allotment Closing Time as if references therein to Closing Time were references to Over-Allotment Closing Time, the comfort letter from the Auditor required to be delivered at the Over-Allotment Closing Time pursuant to paragraph 4.3 and such other certificates, opinions, agreements, materials or other documents in form and substance satisfactory to the REIT, acting Agents as they may reasonably and all request. The obligation of the conditions Agents to close the exercise of the Over-Allotment Option at the Over- Allotment Closing Time shall be conditional on the Agents not having previously terminated their obligations pursuant to paragraph 10 this Agreement, with reference therein have been fulfilled (or waived) prior to “Closing Time" being deemed, for the purposes hereof, to refer to the Over-Allotment Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Agency Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Units provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters:
7.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the REIT’s counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) as to the due formation or incorporation, as the case may be, and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to issue the Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) that the Units have been validly issued and, upon the REIT receiving payment of the purchase price for such Units, will be outstanding as fully paid units of the REIT;
(vii) that the attributes of the Units are consistent in all material respects with the description thereof in the Prospectus;
(viii) that none of (a) the execution and delivery of the Relevant Contractsthis Agreement, (b) the performance and compliance with the terms of the Relevant Contractsthis Agreement, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Contractsthis Agreement, and each Relevant Contract this Agreement has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entitythe REIT, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer CIBC Mellon Trust Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units of the REIT;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiii) that the form and terms of the certificates representing the Units units of the REIT have been duly approved by the REIT;
(xiv) that the Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Time; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the Units, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Ontario or Canada and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of the REIT’s officers; and the Underwriters’ counsel may rely on the opinion of the REIT’s counsel as to matters which specifically relate to the REIT Entities;
7.2.1.2 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special United States counsel to the REITcounsel, that the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with the terms as set out in Schedule A hereto;
7.2.1.3 a certificate or certificates, dated the date of delivery and signed by the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the REIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of the Relevant Contracts this Agreement to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition PropertiesAssets, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and
(v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Units and all matters relating thereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Units registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that:
7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units less an amount equal to the full amount of the Underwriting Fee;
7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units or the completion of the transactions contemplated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph paragraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Units Subscription Receipts, provided for in this Agreement shall be completed electronically at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, the Lead Underwriters on behalf of the Underwriters:
7.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the REITCorporation’s counsel, Fasken ▇▇Blake, ▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys & ▇▇▇▇▇▇▇ LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) as : to the due formation or incorporation, as the case may be, existence and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each corporate power and capacity of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to issue the Units;
(ii) as to Corporation; the authorized and issued share capital of the REIT;
(iii) that except as disclosed in Corporation; the Prospectuscreation, the REIT is the registered owner of all authorization, issue and sale of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) that the Units have been validly issued andSubscription Receipts; that, upon the REIT Corporation receiving payment of the purchase price Purchase Price, the Subscription Receipts will be legal, valid and binding obligations of the Corporation enforceable in accordance with their terms and the terms of the Subscription Receipt Agreement; the Underlying Common Shares have been duly authorized and reserved for such Unitsissuance and, when issued in accordance with the terms of the Subscription Receipt Agreement, will be validly issued and outstanding as fully paid units of the REIT;
(vii) and non- assessable Common Shares; that the attributes of the Units Subscription Receipts and the Underlying Common Shares are consistent in all material respects with the description descriptions thereof in the Prospectus;
(viii) that none of (a) the execution and delivery of the Relevant Contracts, (b) the performance and compliance with the terms of the Relevant Contracts, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant ContractsTerm Sheet, and each Relevant Contract has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units of the REIT;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiii) that the form and terms of the definitive certificates representing the Units have been duly approved by Subscription Receipts and the REIT;
Underlying Common Shares, respectively, comply with the Corporation’s constating documents (xiv) in the case of the Underlying Common Shares), the Subscription Receipt Agreement (in the case of the Subscription Receipts), applicable Laws and Stock Exchange rules; that the Units Underlying Common Shares have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all fulfillment of the requirements Standard Listing Conditions; the appointment of Computershare Investor Services Inc. as registrar and transfer agent of the Stock ExchangeCommon Shares and Computershare Trust Company of Canada as the registrar and transfer agent of the Subscription Receipts and the escrow agent under the Subscription Receipt Agreement; the enforceability of this Agreement, the Subscription Receipt Agreement and will be listed on the Subscription Agreements; the obtaining of all necessary approvals of the Canadian Securities Regulators and the Stock Exchange effective at the Closing Time; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the Units, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by under the laws of jurisdictions other than the Province of Ontario or Canada and may rely, to in connection with the extent appropriate in the circumstances, as to matters of fact on certificates sale of the REIT’s officers; and the Underwriters’ counsel may rely on the opinion of the REIT’s counsel as to matters which specifically relate to the REIT Entities;
7.2.1.2 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with the terms as set out in Schedule A hereto;
7.2.1.3 a certificate or certificates, dated the date of delivery and signed by the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the REIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of the Relevant Contracts to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and
(v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory Subscription Receipts to the Underwriters and/or to Substituted Purchasers; that the REIT has obtained all necessary approvals for the listing execution and delivery of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of Subscription Receipt Agreement and the Units and all matters relating thereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Units registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed Subscription Agreements by the parties thereto on or before Corporation and the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that:
7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units less an amount equal to the full amount of the Underwriting Fee;
7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units or the completion consummation of the transactions contemplated by herein and therein, do not and will not result in a breach of any of (A) the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all provisions of the conditions therein have been fulfilled (or waived) prior to the Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount constating documents of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REITCorporation, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.or
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Units Offered Securities provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units Securities provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters:
7.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the REIT’s counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys Stikeman Elliott LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) as to the due formation or incorporation, as the case may be, and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement the Transaction Documents and to create and issue the UnitsDebentures and the Subscription Receipts and issue the Underlying Securities;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units Debentures and the Subscription Receipts to the UnderwritersUnderwriters and to validly issue the Underlying Securities on the terms set out in the Indenture and the Subscription Receipt Agreement, as applicable, and to authorize the performance by the REIT of this Agreementthe Material Contracts;
(vi) that the Units Subscription Receipts and the Debentures have been validly created and issued and, upon the REIT receiving payment of the purchase price for such Unitssuch Subscription Receipts and Debentures, will be outstanding as fully paid units legal, valid and binding obligations of the REIT;
(vii) at the Closing Time, the Underlying Securities will be duly and validly authorized for issuance in accordance with the Subscription Receipt Agreement and the Indenture, as applicable, and when issued will be outstanding as fully paid Units;
(viii) that the attributes of the Units Offered Securities are consistent in all material respects with the description thereof in the Prospectus;
(viiiix) that none of (a) the execution and delivery of the Relevant Material Contracts, (b) the performance and compliance with the terms of the Relevant ContractsMaterial Contacts, or (c) the issue and sale of the Units Debentures and the Subscription Receipts and the issue of the Underlying Securities results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ixx) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Material Contracts, and each Relevant Contract has been has, or will have at the Closing Time, duly authorized, executed and delivered by each of the applicable REIT Entity Material Contracts and constitutes each such agreement, when so authorized, executed and delivered, will constitute a legal, valid and binding obligation of such REIT Entitythe REIT, enforceable in accordance with its terms, except as enforcement of the Relevant Material Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(xxi) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xixii) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units the Underlying Securities and BNY Trust Company of Canada has been duly appointed the REITsubscription receipt agent under the Subscription Receipt Agreement and the debenture trustee under the Indenture;
(xiixiii) that the first trade by a holder of Underlying Securities issued pursuant to the exchange of Subscription Receipts, or the conversion of Debentures, as applicable, will not be a distribution, provided that such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the time of such trade;
(xiv) the issuance of the Underlying Securities upon (A) exchange of the Subscription Receipts in accordance with the terms of the Subscription Receipt Agreement, and (B) conversion of the Debentures, will be exempt from the prospectus and registration requirements under applicable Securities Laws, and no other documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations under applicable laws of the Qualifying Jurisdictions is required to be obtained to permit such issuance;
(xv) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units Offered Securities for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiiixvi) that the form and terms of the certificates representing the Units Offered Securities of the REIT have been duly approved by the REIT;
(xivxvii) that the Units Debentures, the Subscription Receipts and the Underlying Securities have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Time, in the case of the Debentures and the Subscription Receipts, and when issued, in the case of the Underlying Securities; and
(xvxviii) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the UnitsOffered Securities, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Ontario or Canada and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of the REIT’s officers; and the Underwriters’ counsel may rely on the opinion of the REIT’s counsel as to matters which specifically relate to the REIT Entities;
7.2.1.2 in the event that a United States Purchaser has agreed to purchase UnitsOffered Securities, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units Offered Securities in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units Offered Securities in the United States is made in accordance with the terms as set out in Schedule A hereto;
7.2.1.3 a certificate or certificates, dated the date of delivery and signed by the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the REIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of this Agreement and the Relevant Material Contracts to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units securities of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and
(v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 the comfort letter letter(s) from the Auditors (or such other auditor as may be reasonably required by the Underwriters) required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units Debentures, the Subscription Receipts and the Underlying Securities on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreementthe Material Contracts, and in each case, all matters relating thereto, and have authorized and approved the issuance of the Units Offered Securities and all matters relating thereto; and;
7.2.1.7 one or more definitive certificates representing a document constituting the Units Initial Subscription Receipts, registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the Subscription Receipt Agent, in trust for the REIT, of the Initial Subscription Receipt Purchase Price, by wire transfer;
7.2.1.8 payment by the REIT to TD Securities, on behalf of the Underwriters, of an amount equal to the Initial Underwriting Fee Payment in respect of the Initial Subscription Receipts, by wire transfer; and
7.2.1.9 one or more definitive certificates representing the Initial Debentures, registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Debenture Purchase Price, less the full amount of the Initial Underwriting Fee for Debentures, payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional UnitsSecurities, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a one or more comfort letter letters from the Auditors (or such other auditor as may be reasonably required by the Underwriters) contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and;
7.3.3 a one or more definitive certificate certificates representing the applicable Additional Units Subscription Receipts registered in the name of CDS & Co., or in such name or names as contemplated pursuant to subparagraph 7.2.1.7 the Underwriters may direct, against payment to the Subscription Receipt Agent, in trust for the REIT, of the Additional Subscription Receipt Purchase Price therefor Price, by wire transfer;
7.3.4 payment by the REIT to TD Securities, on behalf of the Underwriters, of an amount equal to the Initial Underwriting Fee Payment in respect of the Additional Subscription Receipts, by wire transfer; and
7.3.5 one or more definitive certificates representing the applicable Additional Debentures registered in the name of CDS & Co., or in such name or names as contemplated pursuant the Underwriters may direct, against payment to subparagraph 7.2.1.7the REIT, or as the REIT may direct, of the Additional Debenture Purchase Price, less the Over-Allotment Underwriting Fee for Debentures, if Additional Debentures are issued, payable to the Underwriters, by wire transfer, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 7.3.6 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units Offered Securities that:
7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivereddelivered to: (a) the Subscription Receipt Agent, to in trust for the REIT, or as the REIT may direct, a wire transfer representing the Subscription Receipt Purchase Price payable by the Underwriters for the Units Initial Subscription Receipts; and (b) the REIT a wire transfer representing the Debenture Purchase Price payable by the Underwriters for the Initial Debentures, less an amount equal to the full amount of the Initial Underwriting FeeFee for Debentures;
7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units Offered Securities or the completion of the transactions contemplated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.preced
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Units Offered Shares provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Bay Adelaide Centre, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ at the Closing Time. The closing of the purchase Time and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 , as applicable. The following are conditions precedent to the obligations of the Underwriters to purchase the Offered Shares under this Agreement, which conditions the Company covenants to use its reasonable best efforts to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters:
7.2.1 7.1 receipt by the Underwriters of the following documents:
7.2.1.1 7.1.1 a favourable legal opinionsopinion and Rule 10b-5 negative assurance statement, dated the Closing DateDate from ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, as U.S. counsel to the Company, addressed to the Lead Underwriter and CF US, in form and substance reasonably satisfactory to the Underwriters, substantially in the form mutually agreed, it being understood that such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of public and stock exchange officials and certificates of the directors or officers of the Company;
7.1.2 a favourable legal opinion, dated the Closing Date from the REIT’s counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) as to the due formation or incorporation, as the case may be, and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to issue the Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) that the Units have been validly issued and, upon the REIT receiving payment of the purchase price for such Units, will be outstanding as fully paid units of the REIT;
(vii) that the attributes of the Units are consistent in all material respects with the description thereof in the Prospectus;
(viii) that none of (a) the execution and delivery of the Relevant Contracts, (b) the performance and compliance with the terms of the Relevant Contracts, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Contracts, and each Relevant Contract has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units of the REIT;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiii) that the form and terms of the certificates representing the Units have been duly approved by the REIT;
(xiv) that the Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Time; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating Company, addressed to the distribution of Underwriters and CF US and dated such delivery date, in form and substance reasonably satisfactory to the UnitsLead Underwriter, substantially in the form mutually agreed, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them (or may arrange for the provision of such opinions directly to the Underwriters) as to matters governed by the laws of jurisdictions other than the Province Provinces of Ontario or Canada Ontario, British Columbia and Alberta and may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of the REIT’s officers; public and the Underwriters’ counsel may rely on the opinion stock exchange officials and certificates of the REIT’s counsel as to matters which specifically relate to directors or officers of the REIT EntitiesCompany;
7.2.1.2 in the event that 7.1.3 a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with the terms as set out in Schedule A hereto;
7.2.1.3 a certificate or certificatescertificate, dated the date of delivery and signed by either the chief executive officer and/or or the chief financial officer of the REITCompany, or such other officers officer of the REIT Company as may be acceptable to the UnderwritersLead Underwriter, acting reasonably, addressed to the Underwriters and CF US certifying on behalf of the REIT and without personal liabilitythat:
(i) that 7.1.3.1 the REIT Company has complied in all material respects with all terms and conditions of the Relevant Contracts this Agreement to be complied with by the REIT Company at or prior to the Closing Time;
(ii) that 7.1.3.2 the representations and warranties of the REIT Company contained herein in this Agreement are true and correct in all material respects (or, as of regards specific representations and warranties if qualified by materiality, in all respects) as at the Closing Time Closing, with the same force and effect as if made on and as at the Closing Time, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties shall be true and correct in all material respects (or, as regards specific representations and warranties if qualified by materiality, in all respects), as of such timedate, after giving effect to the transactions contemplated by this Agreement;
(iii) that 7.1.3.3 as at the Closing Time, no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT Common Shares has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons person signing such certificate, are contemplated or threatened;
7.1.3.4 the U.S. Prospectus Supplements shall have been filed with the Commission in a timely fashion and no stop order or other order (A) suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, (B) suspending any Issuer Free Writing Prospectus, (C) suspending the U.S. Prospectuses, or (D) suspending the Canadian Prospectuses, has been issued, and no investigation, order, inquiry or proceeding for that purpose has been instituted, pending or, to their knowledge, is contemplated or threatened by the SEC or any state or regulatory body; and the SEC shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
7.1.3.5 that the person signing such certificate has examined the Registration Statement, the U.S. Prospectuses, the Canadian Prospectuses and the Pricing Disclosure Package, and in their opinion, (A) (i) the Registration Statement, as of the date it was declared effective by the Commission, (ii) the U.S. Prospectuses, as of their date and on the applicable delivery date, (iii) the Canadian Prospectuses, as of their date and on the applicable delivery date, and (iv) that to the best Pricing Disclosure Package, as of the knowledgeApplicable Time, information did not and belief do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the persons signing such certificatestatements therein not misleading, after having made reasonable inquiries, and (B) since the date the Registration Statement was declared effective by the Commission, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the U.S. Prospectuses, the Canadian Prospectuses or any Issuer Free Writing Prospectus that has not been so set forth; and
7.1.3.6 subsequent to the respective dates as of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date which information is given in the operatingRegistration Statement, financial the U.S. Prospectuses, the Canadian Prospectuses and the Pricing Disclosure Package, the Company has not incurred any material liabilities or physical condition of the Assets obligations, direct or the Acquisition Propertiescontingent, or entered into any material transactions, not in any current or intended the ordinary course of business, affairsor declared or paid any dividends or made any distribution of any kind with respect to its capital stock, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that and except as disclosed in the Prospectus Pricing Disclosure Package and in the Canadian Final Prospectus, there has not been any change in the share capital, or any Amendment material change in the short term or long term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company or any material adverse change or any development involving a prospective material adverse change (as they existed at whether or not arising in the time ordinary course of filingbusiness); and;
(v) as 7.1.4 the lock-up agreements between the Lead Underwriter and the officers and directors of the Company set forth on Exhibit “A”, delivered to the Lead Underwriter on or before the date of this Agreement, shall be in full force and effect on such other matters of a factual nature as Delivery Date;
7.1.5 the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 the comfort letter from the Auditors required to be delivered receiving, at the Closing Time pursuant to paragraph 4.4 Time, a certificate dated the Closing Date and “brought down” to within 2 Business Days signed by a senior officer of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Units and all matters relating thereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Units registered in the name of CDS & Co., or in such name or names Company as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable be acceptable to the Underwriters, by wire transferacting reasonably, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
7.1.5.1 the constating documents of the Company;
7.2.3 7.1.5.2 the resolutions of the directors of the Company relevant to the Offering, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
7.1.5.3 the incumbency and signatures of signing officers for the Company;
7.1.6 the Underwriters receiving, at the Closing, certificates of status and/or compliance, where issuable under applicable law, for the Company and each of the Material Subsidiaries, dated within two (2) Business Days prior to the Closing Date;
7.1.7 the comfort letters required to be delivered at the times specified pursuant to Section 4.5;
7.1.8 evidence satisfactory to the Lead Underwriter that the Company has authorized and approved this Agreement, the issuance and sale of the Offered Shares and all matters relating thereto;
7.1.9 in book-entry form or one or more definitive certificates (or evidence of issuance in book-entry form or its equivalent in the non-certificated inventory system at the Company’s registrar and transfer agent) representing a document constituting the Offered Shares registered in the name of the CDS & Co. or the Depository Trust Company, as applicable, or in such name or names as the Lead Underwriter may direct, against payment to the Company, or as the Company may direct, of the aggregate purchase price of the Offered Shares, less an amount equal to the full amount of the applicable Underwriting Fee, by wire transfer payable in Toronto, all in form and substance satisfactory to the Lead Underwriter acting reasonably;
7.1.10 the Canadian Prospectuses and any Amendments shall have been filed with the applicable Canadian Securities Regulators in each of the Qualifying Provinces in accordance with Canadian Securities Laws;
7.1.11 the U.S. Prospectus Supplements shall have been timely filed with the Commission in accordance with Section 3.9. The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the U.S. Prospectuses or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the U.S. Prospectuses or otherwise shall have been complied with;
7.1.12 evidence satisfactory to the Lead Underwriter of the approval of the listing and posting for trading on the Stock Exchanges of the Offered Shares, subject only to the satisfaction by the Company of any Standard Listing Conditions;
7.1.13 the representations and warranties of the REIT Company contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 7.1.14 the REIT Company having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 7.1.15 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 Section 11 of this Agreement.
7.3 7.2 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REITCompany’s obligations to issue the Units Offered Shares that:
7.4.1 7.2.1 the Underwriters shall have made or delivered, delivered or caused to be made or delivered, delivered to the REIT, or as the REIT may direct, Company a wire transfer representing the Purchase Price Gross Proceeds payable by the Underwriters for the Units Offered Shares, less an amount equal to the full amount of the applicable Underwriting FeeFee and the Underwriters’ expenses as contemplated by Section 10;
7.4.2 7.2.2 the Underwriters shall have complied in all material respects with the covenants and satisfied all terms and conditions to be complied with and satisfied by them it at or prior to the Closing Time;Time (which condition may be waived in writing, in whole or in part, by the Company); and
7.4.3 7.2.3 no order shall have been made and no proceedings for such purpose being pending or threatened by any securities regulatory authority in any Qualifying Jurisdiction which restricts in any manner the distribution of the Units or the completion of the transactions contemplated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 Offered Shares. The REIT Company shall make all necessary arrangements for the exchange of the definitive certificate representing the Units Offered Shares delivered pursuant to subparagraph 7.2.1.7 Section 7.1 hereof, on the date of delivery, at the principal office in Toronto Toronto, Ontario of the duly appointed registrar and transfer agent for the UnitsOffered Shares, or its agent, for definitive certificates (or evidence of issuance in book-entry form or its equivalent in the non-certificated inventory system) representing or documents constituting the Units Offered Shares in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 24 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
7.3 On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Lead Underwriter may reasonably request.
7.4 The documents delivered to the Underwriters pursuant to Sections 7.1.1, 7.1.2, 7.1.3, 7.1.4 and 7.1.5 shall also be addressed to the U.S. affiliates of the Underwriters, as applicable, or such documents shall explicitly allow the U.S. affiliates of the Underwriters to rely upon such documents.
Appears in 1 contract
Closing of the Offering. 7.1 10.1 The closing of the purchase and sale of the Units Offered Shares provided for in this Agreement shall be completed at the offices remotely via electronic transmission of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ documentation (such as by use of PDF) at the Closing Time or at such other place as the Company, the Selling Shareholders and the Underwriters may agree in writing. At the Closing Time. The closing , delivery of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, Offered Shares to the extent the Over-Allotment Option is exercised, Underwriters shall be completed at made through the facilities of CDS, or in such office at other manner as the Option Closing TimeUnderwriters may direct.
7.2 10.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions each of the Company and the Selling Shareholders covenants to use its best efforts to fulfil as it relates to such party within the times set out herein, and which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters:
7.2.1 10.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 10.2.1.1 favourable legal opinions, dated the Closing Date, from the REITSelling Shareholders’ counsel, Torys LLP, and from the Company’s counsel, Fasken ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, and from the Underwriters’ counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) as to , the due formation or incorporationauthorization, as the case may beexecution, and valid existence under the laws delivery of its jurisdiction of formation or incorporationthis Agreement, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to issue the Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize delivery and, if applicable, the execution and delivery filing of each of the Preliminary Prospectus, the Prospectus and any Amendments, Offering Documents under applicable securities legislation and the filing regulations and rules thereunder of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) that the Units have been validly issued and, upon the REIT receiving payment of the purchase price for such Units, will be outstanding as fully paid units of the REIT;
(vii) that the attributes of the Units are consistent in all material respects with the description thereof in the Prospectus;
(viii) that none of (a) the execution and delivery of the Relevant Contracts, (b) the performance and compliance with the terms of the Relevant Contracts, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of the Relevant Contracts, and each Relevant Contract has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions Agreement and, in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units case of the REIT;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiii) that the form and terms of the certificates representing the Units have been duly approved by the REIT;
(xiv) that the Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Time; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating Company only, the appointment of Computershare Investor Services Inc. as the registrar and transfer agent with respect to the distribution of the UnitsOffered Shares, it being understood that such counsel may rely on customary assumptions and qualifications and on or provide directly the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province Provinces of Ontario British Columbia or Canada Ontario, as applicable, and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of the REIT’s officers; Selling Shareholders’ and the Underwriters’ Company’s respective officers;
10.2.1.2 favourable legal opinions, dated the Closing Date, from reputable external legal counsel may rely on to the opinion Company and the Subsidiaries, as to the ownership and good standing of each of the REIT’s Subsidiaries in respect of the chain of title for each of the Projects, in form and substance acceptable to the Underwriters, acting reasonably;
10.2.1.3 favourable legal opinions, dated the Closing Date, from reputable external legal counsel to the Company, as to title matters which specifically relate in respect of the Project Real Property for each of the Projects, in form and substance acceptable to the REIT EntitiesUnderwriters, acting reasonably;
7.2.1.2 10.2.1.4 in the event that a any sales of Offered Shares are made in the United States Purchaser has agreed pursuant to purchase Unitsthis Agreement, a favourable legal opinion, dated as of the date on which the Closing Time occursDate, from special the Company’s United States counsel counsel, Shearman & Sterling LLP, to the REIT, effect that it is not necessary in connection with (i) the offer and sale of Units the Offered Shares to the Underwriters, and (ii) the initial reoffer and resale of the Offered Shares by the Underwriters, through their U.S. Affiliates in the United States does not require registration States, to register the Offered Shares under the United States U.S. Securities Act of 1933Act, as amendedprovided, provided in each case, that such offer offers and sale of Units in the United States is sales are made in accordance with this Agreement and the terms U.S. Placement Memorandum (it being understood that no opinion needs to be given by counsel as set out in Schedule A heretoto subsequent resale of any Offered Shares);
7.2.1.3 10.2.1.5 a certificate or certificates, dated the date of delivery Closing Date, and signed by the chief executive officer and/or President and Chief Executive Officer, Chief Financial Officer or the chief financial officer General Counsel and Corporate Secretary of the REITCompany, or such other officers officer of the REIT Company as may be acceptable to the Underwriters, acting reasonably, certifying on behalf of the REIT and without personal liability:
that: (i) that the REIT Company has complied with all terms and conditions of the Relevant Contracts this Agreement to be complied with by the REIT Company at or prior to the Closing Time;
; (ii) that the representations and warranties of the REIT Company contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
Time; (iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT Common Shares has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons person signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and
(v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Units and all matters relating thereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Units registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units that:
7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units less an amount equal to the full amount of the Underwriting Fee;
7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units or the completion of the transactions contemplated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 8.1 The closing of the purchase and sale of the Units Initial Debentures provided for in this Agreement shall be completed at the offices of Fasken ▇Fogler, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPLLP in Toronto, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Ontario at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 8.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securitiesthe Joint Bookrunners, on behalf of the Underwriters:
7.2.1 8.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 8.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the REITCorporation’s and the Manager’s Canadian counsel, Fasken ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) : the creation and existence of each of the Corporation and the Manager as to the due formation or incorporation, as the case may be, and valid existence corporations under the laws of its jurisdiction the Province of formation or incorporationOntario, their power and capacity to own property and assets and carry on business as the case may be, of each of the REIT Entities that are shown described in the chart contained in Prospectus and the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) Corporation’s ability to execute, deliver and as to the adequacy of the power of the REIT to carry out perform its obligations under this Agreement and of the Corporation to create, authorize and issue the Prospectus Debentures and to issue the Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) Debenture Shares; that all necessary corporate action has been taken by the REIT to authorize Corporation in connection with this Agreement and the execution and delivery Indenture; that no breach (whether after notice or lapse of each time or both) of or default will occur under (A) the Corporation’s constating documents, (B) any applicable Laws of the Preliminary ProspectusProvince of Ontario and (C) the Material Agreements as a result of the entering into of this Agreement and the Indenture; as to the form and terms of certificate(s) representing the Shares and Prospectus Debentures complying in all respects with all applicable statutory requirements, any applicable requirements of the constating documents and by-laws of the Corporation, the Prospectus rules of the Stock Exchange and any Amendmentsthe Business Corporations Act (Ontario), and that they have been duly approved by the filing of such documents under Corporation; the Securities Laws in each authorization, issue, sale and distribution of the Qualifying Jurisdictions, to validly issue Prospectus Debentures and the Units to the Underwriters, and to authorize the performance by the REIT of this Agreement;
(vi) Debenture Shares; that the Units Prospectus Debentures have been validly issued authorized for issuance by the Corporation and, upon the REIT Corporation receiving payment of the purchase price therefor, the Prospectus Debentures will be validly issued and outstanding; that the Debenture Shares have been validly authorized for such Unitsissuance by the Corporation and, upon the conversion, redemption or repayment of the Prospectus Debentures, and when issued, will be validly issued and outstanding as fully paid units of the REIT;
(vii) Shares; that the attributes of the Units Prospectus Debentures are consistent in all material respects with the description thereof in the Prospectus;
(viii) Prospectus and the Indenture; that none of (a) the execution Prospectus Debentures and delivery of the Relevant Contracts, (b) the performance and compliance with the terms of the Relevant Contracts, or (c) the issue and sale of the Units results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation Shares issuable on conversion of the Prospectus and without having undertaken any investigation or inquiryDebentures have been conditionally approved for listing by the Stock Exchange, of any agreement or instrument, including subject to the Transaction Documents, by which any fulfillment of the REIT Entities is bound;
(ix) that all necessary action has been taken by Standard Listing Conditions; the applicable REIT Entity to authorize the execution appointment of Computershare Trust Company of Canada as registrar and delivery transfer agent of the Relevant Contracts, Shares and each Relevant Contract has been duly executed CST Trust Company as registrar and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entity, enforceable in accordance with its terms, except as enforcement transfer agent of the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualificationsProspectus Debentures; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions in the Prospectus and any Amendment, including with respect to the qualification of the Prospectus Debentures as investments as described under the headings heading “Eligibility for Investment” in the Prospectus, and to the effect that the summary contained in the Prospectus under the heading “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer Company at its principal office in Toronto has been duly appointed as the transfer agent ” is a fair summary of such considerations; and registrar for units of the REIT;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT Corporation under the Securities Laws applicable securities laws of the Qualifying Jurisdictions to qualify the Units Prospectus Debentures for distribution and sale to the public in each such of the Qualifying Jurisdiction Jurisdictions through dealers duly and properly persons registered under the applicable legislation of such Qualifying Jurisdiction Securities Laws who have complied with the relevant provisions of such applicable legislation;
(xiii) that Securities Laws; no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained under the form and terms laws of the certificates representing Qualifying Jurisdictions to permit the Units have been duly approved issuance by the REIT;
(xiv) that Corporation of the Units have been conditionally approved for listing Debenture Shares upon the conversion, upon the redemption or at the maturity of the Prospectus Debentures in accordance with the terms and conditions of the Prospectus Debentures to the holders of the Prospectus Debentures; the first trade by a holder of Debenture Shares upon the Stock Exchangeconversion, upon the redemption or at the maturity of the Prospectus Debentures will not be subject to the REIT fulfilling all of the prospectus requirements of the Stock Exchangelaws of the Qualifying Jurisdictions, and no filing, proceeding, approval, consent or authorization will be listed on required to be made, taken or obtained under the Stock Exchange effective at the Closing Time; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution laws of the UnitsQualifying Jurisdiction to permit such trade or distribution, through investment dealers or brokers, if required, registered under the applicable legislation of the Qualifying Jurisdictions who have complied with the relevant provisions of such legislation; it being is understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Ontario or Canada and may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of officers of the REIT’s officers; Corporation and the Underwriters’ counsel may rely on the opinion Manager, as applicable, and from other responsible persons in a position to have knowledge of the REIT’s counsel as to matters which specifically relate to applicable facts (including certificates of the REIT Entitiesregistrar and transfer agent for the Shares and Prospectus Debentures and public officials);
7.2.1.2 8.2.1.2 in the event that a United States Purchaser has agreed to purchase UnitsProspectus Debentures, a favourable legal opinion, dated as the Closing Date, from the Corporation’s United States counsel, to the effect that no registration of the date on which Prospectus Debentures will be required under the Closing Time occurs, from special United States counsel to Securities Act of 1933, as amended, in connection with the REITinitial re-offer and resale of the Prospectus Debentures by the Underwriters through their U.S. Affiliates in the United States, provided, in each case, that the offer and sale of Units the Prospectus Debentures, as applicable, in the United States does is made in accordance with this Agreement, including the terms set out in Schedule A hereto, it being understood that such counsel need not require express its opinion with respect to any subsequent resales of the Prospectus Debentures, the Debenture Shares issuable to the holders of Prospectus Debentures in accordance with the Indenture may be delivered to such holders without registration under the United States Securities Act of 1933, as amended, provided that no commission or other remuneration is given or paid, directly or indirectly, for soliciting the conversion of the Prospectus Debentures into Debenture Shares, and such offer and sale of Units counsel may rely, to the extent appropriate in the United States is made in accordance with circumstances, as to matters of fact, on certificates of officers of the terms as set out in Schedule A heretoCorporation;
7.2.1.3 8.2.1.3 a certificate or certificatesfavourable legal opinion, dated the date of delivery Closing Date, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and content satisfactory to the Underwriters, as to such matters as the Underwriters may reasonably request;
8.2.1.4 a certificate dated the Closing Date and signed by the chief executive officer and/or and the chief financial officer of the REITCorporation, or such other officers of the REIT Corporation, as may be acceptable to the Underwriters, certifying on behalf of the REIT and Corporation, each without personal liability:
(i) that the REIT Corporation has complied with all terms and conditions of the Relevant Contracts this Agreement to be complied with (other than any terms and conditions which have been waived by the REIT Joint Bookrunners, on behalf of the Underwriters) by the Corporation at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT Corporation contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and
(v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Units and all matters relating thereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Units registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; provided, however, that references in such representations and warranties (other than in paragraph 6 hereof) to “Preliminary Prospectus” shall be to the “Prospectus”;
7.2.4 (iii) that no order, ruling or determination having the REIT having complied with all covenants effect of ceasing or suspending trading in any securities of the Corporation has been issued and satisfied all terms is continuing and conditions to be complied with in effect, and satisfied by it at or prior no proceedings for such purpose are pending or, to the Closing Timeknowledge of the persons signing such certificate, are contemplated or threatened;
(iv) since the respective dates of the Prospectus and any Amendment, to the knowledge of the persons signing such certificate, there has been no material adverse change, financial or otherwise, in the assets, business, operations or financial condition of the Corporation, from that disclosed in the Prospectus or any Amendment, as the case may be (as they existed at the time of filing); and
7.2.5 (v) since the Underwriters not having previously terminated their obligations date of this Agreement, no transaction or agreement has been entered into by the Corporation which is material to the Corporation other than as described in the Prospectus or any Amendment;
8.2.1.5 the comfort letters from the Auditors required to be delivered at the Closing Time pursuant to paragraph 10 of this Agreement.5.1.3;
7.3 It shall be a condition precedent 8.2.1.6 evidence satisfactory to the obligations Underwriters that the Corporation has obtained all necessary approvals for the listing of the Underwriters Prospectus Debentures and Shares issuable on the conversion of the Prospectus Debentures on the Stock Exchange subject only to purchase the Additional Units, if any, that:Standard Listing Conditions;
7.3.1 8.2.1.7 evidence satisfactory to the Underwriters shall have received a certificate dated that the date directors of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from Corporation have authorized and approved the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days issuance of the Option Closing DateProspectus Debentures and Debenture Shares; and
7.3.3 a 8.2.1.8 one or more definitive certificate or global certificates representing the applicable Additional Units Initial Debentures registered in the name of CDS & Co. and/or in such name or names as contemplated pursuant to subparagraph 7.2.1.7 the Joint Bookrunners or the Underwriters may direct, against payment to the Corporation, or as the Corporation may direct, of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7net of the Underwriting Fee, by wire transfer payable in Toronto; all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 8.2.2 the Underwriters not having previously terminated their obligations pursuant to paragraph 11 of this Agreement.
8.3 It shall be a condition precedent to the Corporation’s obligations to issue the Initial Debentures that:
8.3.1 the Underwriters shall have delivered or caused to be delivered to the Corporation a wire transfer representing the Purchase Price net of the Underwriting Fee, payable by the Underwriters for the Initial Debentures;
8.3.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall herein contained to be complied with and satisfied by them at or satisfiedprior to the Closing Time; and
8.3.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Initial Debentures.
8.4 The Over-Allotment Option shall be exercisable, in whole or in part, until 12:00 p.m. (Toronto time) on the Over-Allotment Expiry Date. The Over-Allotment Option may be exercised by the Joint Bookrunners, on behalf of the Underwriters, by delivery of written notice to the Corporation confirming the number of Over- Allotment Debentures in respect of which the Over-Allotment Option is being exercised and the date and time on such date (the “Over-Allotment Closing Time”) which such Over-Allotment Debentures are to be purchased. Upon exercise of the Over-Allotment Option, the Corporation shall become obligated to issue and sell to the Underwriters and the Underwriters shall become severally obligated to purchase, in their respective percentages set out in paragraph 13.1 hereof, from the Corporation the total number of Over-Allotment Debentures, as applicable, as to which the Underwriters are exercising the Over-Allotment Option. The Over-Allotment Option Closing Time shall be determined by the Joint Bookrunners on behalf of the Underwriters but, unless otherwise agreed between the Joint Bookrunners and the Corporation, shall not be earlier than three Business Days or later than five Business Days after the exercise of the Over- Allotment Option and, in any event, shall not be earlier than the Closing Date nor later than five Business Days after the Over-Allotment Expiry Date. If the Over-Allotment Option is exercised as to all or any portion of the Over- Allotment Debentures in accordance with the terms hereof, certificates in definitive or global form for such Over-Allotment Debentures and payment therefor, shall be delivered at the Over-Allotment Closing Time in the manner, and upon the terms and conditions, set forth in paragraphs 8.1, 8.2.1.8 and 8.4 except that reference therein to the Initial Debentures and Closing Time shall be deemed, for the purposes of this paragraph 8.4, to refer to such Over-Allotment Debentures and Over-Allotment Closing Time, respectively, and the amount payable by the Underwriters to the Corporation in respect of the exercise of the Over-Allotment Option shall be equal to the number of Over-Allotment Debentures in respect of which the Over-Allotment Option is exercised multiplied by the Offering Price and the amount payable by the Corporation to the Underwriters in respect of such exercise shall be equal to 4.00% of the aggregate purchase price for the Over-Allotment Debentures. If the Over-Allotment Option is exercised in accordance with the terms hereof, the obligations of the Underwriters to purchase the Over-Allotment Debentures shall be conditional on the delivery by the Corporation of the certificate referred to in paragraph 8.2.1.4 as of the Over-Allotment Closing Time as if references therein to Closing Time were references to Over-Allotment Closing Time and such other certificates or other documents in form and substance satisfactory to the Underwriters as they may reasonably request. The obligation of the Underwriters to complete the purchase of the Over- Allotment Debentures upon the exercise of the Over-Allotment Option at the Over-Allotment Closing Time shall be conditional on the Underwriters not having previously terminated their obligations pursuant to paragraph 11 of this Agreement, with reference therein to “Closing Time” being deemed, for the purposes hereof, to “Option refer to the Over-Allotment Closing Time”.
7.4 . It shall be a condition precedent to the REITCorporation’s obligations to issue the Units that:
7.4.1 Over-Allotment Debentures hereunder upon the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units less an amount equal to the full amount exercise of the Underwriting Fee;
7.4.2 Over-Allotment Option at the Over-Allotment Closing Time that the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units or the completion of the transactions contemplated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Over-Allotment Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Units Debentures provided for in this Agreement shall be completed at the offices of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at the Closing Time. The closing of the purchase and sale of the Additional Units Debentures provided for in the Over-Allotment Option, to the extent the Over-Allotment Option is exercised, shall be completed at such office at the Option Closing Time.
7.2 The following are conditions precedent to the obligations of the Underwriters under this Agreement, which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the Underwriters:
7.2.1 receipt by the Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the REIT’s counsel, Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from the Underwriters’ counsel, Torys LLP, with respect to all such matters as the Underwriters may reasonably request, including, without limiting the generality of the foregoing:
(i) as to the due formation or incorporation, as the case may be, and valid existence under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power of the REIT to carry out its obligations under this Agreement and to create and issue the Debentures and to issue the Debenture Units;
(ii) as to the authorized and issued capital of the REIT;
(iii) that except as disclosed in the Prospectus, the REIT is the registered owner of all of the issued and outstanding shares or units of each of its directly owned subsidiaries;
(iv) that each of the Opinion Entities has all requisite power and capacity under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Prospectus and any Amendments;
(v) that all necessary action has been taken by the REIT to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Amendments, and the filing of such documents under the Securities Laws in each of the Qualifying Jurisdictions, to validly issue the Units Debentures to the UnderwritersUnderwriters and to validly issue the Debenture Units on terms set out in the Indenture, and to authorize the performance by the REIT of this the Underwriting Agreement;
(vi) that the Debentures have been validly created and issued and the Debenture Units have been validly issued authorized by the REIT and, upon the REIT receiving payment of the purchase price for such UnitsDebentures or upon the Debenture Units being issued, will be outstanding as legal, valid and binding obligations of the REIT, in the case of the Debentures, or as fully paid units of the REIT, in the case of the Debenture Units;
(vii) that the attributes of the Debentures and the Debenture Units are consistent in all material respects with the description thereof in the Prospectus;
(viii) that none of (a) the execution and delivery of the Relevant Material Contracts, (b) the performance and compliance with the terms of the Relevant such Material Contracts, or (c) the issue and sale of the Units Debentures and the issue of the Debenture Units, results in any breach of, or is in conflict with or constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which constitutes a default under, any of the terms, conditions or provisions of the constating documents, regulations, by by-laws or resolutions of the boards or securityholders of any of the REIT Entities or, to the actual knowledge of the specific lawyers of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or inquiry, of any agreement or instrument, including the Transaction Documents, by which any of the REIT Entities is bound;
(ix) that all necessary action has been taken by the applicable REIT Entity to authorize the execution and delivery of each of the Relevant ContractsMaterial Contracts to which it is a party, and each Relevant such Material Contract to which it is a party has been duly executed and delivered by the applicable REIT Entity and constitutes a legal, valid and binding obligation of such REIT Entitythe REIT, enforceable in accordance with its terms, except as enforcement of the Relevant such Material Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of paragraph 8 of this Agreement;
(x) confirming its opinions in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”;
(xi) that Canadian Stock Transfer the Debenture Trustee has been duly appointed as the debenture trustee under the Indenture;
(xii) that CIBC Mellon Trust Company at its principal office in Toronto has been duly appointed as the transfer agent and registrar for units of the REIT;
(xiixiii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the REIT under the Securities Laws to qualify the Units Debentures for distribution to the public in each such Qualifying Jurisdiction through dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
(xiiixiv) that the form and terms of the certificates representing the Units units of the REIT have been duly approved by the REIT;
(xivxv) that the Debentures and the Debenture Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the requirements of the Stock Exchange, and will be listed on the Stock Exchange effective at the Closing Time, in the case of the Debentures, or when issued, in the case of the Debenture Units; and
(xvxvi) as to all other legal matters reasonably requested by counsel to the Underwriters relating to the distribution of the Debentures and the Debenture Units, it being understood that such counsel may rely on customary assumptions and qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Ontario or Canada and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of the REIT’s officers; and the Underwriters’ counsel may rely on the opinion of the REIT’s counsel as to matters which specifically relate to the REIT Entities;
7.2.1.2 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing Time occurs, from special United States counsel to the REIT, that the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with the terms as set out in Schedule A hereto;
7.2.1.3 a certificate or certificates, dated the date of delivery and signed by the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the REIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of this Agreement and the Relevant Contracts Indenture to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries, since the date of the Prospectus and any Amendments thereto there has been no material adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition PropertiesAssets, or in any current or intended business, affairs, operations, assets, liabilities (contingent or otherwise), capital or ownership of the REIT or the REIT Entities, from that disclosed in the Prospectus or any Amendment (as they existed at the time of filing); and
(v) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request;
7.2.1.4 7.2.1.3 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 7.2.1.4 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Debentures and Debenture Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 7.2.1.5 evidence satisfactory to the Underwriters that the REIT has authorized and approved this Agreement, the issuance of the Debentures and Debenture Units and all matters relating thereto; and
7.2.1.7 7.2.1.6 one or more definitive certificates representing a document constituting the Units Debentures registered in the name of CDS & Co., or in such name or names as the Underwriters may direct, against payment to the REIT, or as the REIT may direct, of the Purchase Price, less the full amount of the Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the Underwriters, acting reasonably;
7.2.3 the representations and warranties of the REIT contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.4 the REIT having complied with all covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement.
7.3 It shall be a condition precedent to the obligations of the Underwriters to purchase the Additional UnitsDebentures, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in the form contemplated pursuant to subparagraph 7.2.1.37.2.1.2, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a one or more definitive certificate certificates representing the applicable Additional Units Debentures registered as contemplated pursuant to subparagraph 7.2.1.7 7.2.1.6 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.77.2.1.6, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Units Debentures that:
7.4.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Purchase Price payable by the Underwriters for the Units Debentures less an amount equal to the full amount of the Underwriting Fee;
7.4.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time;
7.4.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Units Debentures or the completion of the transactions contemplated by the Transaction Documents; and
7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Closing Time.
7.5 It shall be a condition precedent to the REIT’s obligations to issue the Additional Units Debentures that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units Debentures less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the distribution of the Additional Units Debentures or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate certificate(s) representing the Units Debentures delivered pursuant to subparagraph 7.2.1.7 paragraph 7.2.1.6 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the UnitsDebentures, or its agent, for definitive certificates certificate(s) representing the Units Debentures in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Sources: Underwriting Agreement