Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions: (a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters. (c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters. (d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law. (e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable). (f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities. (g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information. (h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. (i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date. (j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus. (k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof. (l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates date of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing datesdate, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement Supplement, and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization”, “Earnings Coverage” and “Auditors’ Consent” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicableand excluding the Prospectus Financial Information).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates date of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing datesdate, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at December 31, 2011, December 31, 2010 and January 1, 2010 and for the years ended December 31, 2009 2011 and 2008 2010 and the unaudited consolidated financial statements as at March 31, 2012 and for the three months ended March 31, 2012 and 2011 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect each of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing datesdate, to the effect that the French language version of (A) the Prospectus Financial Information and (B) the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Prospectus Financial Information and Financial Information, respectively.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorGuarantor , in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the GuarantorGuarantor , as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the each Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the each Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the each Guarantor of their its obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor Guarantors upon the opinion of counsel for the Company and the GuarantorGuarantors. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, regarding enforceability of the subordination agreement to be entered into simultaneously with the execution of the Supplemental Indenture (as contemplated therein) and regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or and the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such the Preliminary Prospectus and the Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or and the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively as applicable (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 2008 and 2008 2007 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30March 31, 2010 2009 and for the three and six months ended June 30March 31, 2010 2009 and 2009 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), ) is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or and the Final Prospectus, as applicable, Prospectus is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company Company, any Vice President of RWP and any Vice President of the GuarantorRCCI, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company Company, RWP or the GuarantorRCCI, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company Company, RWP or the GuarantorRCCI, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the GuarantorGuarantors, the performance of any of the agreements of the Company or the GuarantorGuarantors, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents Agent hereunder shall be subject as to the accuracy Shares to be delivered at the Closing Date are subject, in the discretion of the Agent, to the condition that all representations and warranties on the part of the Company and the Guarantor contained LPSB Parties herein on are, at and as of the Closing Date as if made on commencement of the Offering and at and as of the Closing Date, to true and correct in all material respects, the accuracy of condition that the statements of the Company and the Guarantor made LPSB Parties shall have performed in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor all material respects all of their respective obligations hereunder at to be performed on or prior to the Closing Date before such dates, and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) a. At the Closing Date, the Agents LPSB Parties shall have received conducted (except to the extent waived or otherwise approved by the Federal Reserve, the IDFI or any applicable governmental entity) the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Offering imposed upon them by the Federal Reserve and the IDFI.
b. The Registration Statement shall have been declared effective by the Commission and the Prospectus and Stockholders’ Proxy Statement cleared for use by the Federal Reserve not later than 5:30 p.m. on the date of this Agreement and the Conversion Application shall have been approved by the Federal Reserve and the IDFI no later than 5:30 p.m. on the date of this Agreement or, with the Agent’s consent, at a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory later time and date; and at the Closing Date no stop order suspending the effectiveness of the CompanyRegistration Statement or the consummation of the Conversion shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission or any state securities or Blue Sky authority, dated and no order or other action suspending the effectiveness of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or threatened by the Federal Reserve or the IDFI and no injunction, restraining order, or order of any nature by a Federal or state court of competent jurisdiction shall have been issued as of the Closing Date, in form and substance satisfactory to Date which would prevent the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers issuance of the Company or the Guarantor Shares. The Registration Statement and upon certificates of public officials.
(i) At the Closing Date, the Agents all amendments thereto shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and the Stockholders’ Proxy Statement, and all amendments or supplements thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
c. At the Closing Date, the Agent shall have received:
(i) The favorable opinion, dated as of the Closing Date addressed to the Agent and for the benefit of the Agent and its counsel, of ▇▇▇▇, as to issues of federal, Maryland and, with respect to enforceability of this Agreement, New York law set forth below. The opinion of ▇▇▇▇ shall be in form and substance to the effect that:
(1) Mid-Tier is duly incorporated and is validly existing as a corporation under the laws of the United States of America and the MHC is duly incorporated and validly existing under the laws of the United States of America as a mutual holding company; and each has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, Prospectus and any Permitted Free Writing Prospectus.
(2) there The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Maryland, and has the corporate power and authority to own, lease and operate its properties and to conduct its business following the Conversion, as described in the Registration Statement and Prospectus. Upon consummation of the Offering, the Company will be a savings and loan holding company under the HOLA.
(3) Each of the Subsidiaries has been incorporated and is validly existing in good standing under the laws of the jurisdiction of its incorporation. Each of the Subsidiaries has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, Prospectus and any Permitted Free Writing Prospectus.
(4) The Bank is a duly organized and validly existing Indiana-chartered savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing Indiana-chartered savings bank, with full power and authority to own its properties and to conduct its business as described in the Registration Statement and Prospectus; the activities of the Bank as described in the Registration Statement and Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC, and Indiana law and the rules, regulations and practices of the IDFI.
(5) To the extent required by applicable law, each of the MHC, the Mid-Tier and the Company is duly qualified as a foreign corporation to transact business in the state of Indiana and each of the LPSB Parties is duly qualified as a foreign corporation to conduct business in each other jurisdiction in which such qualification is, and following the consummation of the Conversion, will be required, unless the failure to be so qualified in one or more of such jurisdictions would not beenhave a Material Adverse Effect.
(6) All of the outstanding capital stock of the Bank is duly authorized and, since upon payment therefor, validly issued, fully paid and non-assessable and, upon consummation of the date Conversion, will be owned by the Company, and to such counsel’s knowledge, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or other restrictions.
(7) The Bank is a member of the FHLB-Indianapolis. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and to such counsel’s knowledge no proceedings for the termination or revocation of such insurance are pending or threatened;
(8) The activities of each LPSB Party prior to and following the Conversion as described in the Registration Statement and Prospectus are permitted to subsidiaries of which information is given an Indiand-chartered savings bank or a federally regulated savings and loan holding company by the rules, regulations, policies and practices of the IDFI and the Federal Reserve, and any other federal or state authority having jurisdiction over such matters.
(9) Upon consummation of the Conversion, the authorized equity capital of the Company will consist of one hundred thousand (100,000) shares of common stock and fifty thousand (50,000) shares of preferred stock, and the issued and outstanding equity capital of the Company will be within the range set forth in the Registration Statement and the Prospectus under the caption “Capitalization”; except as described in the Prospectus, any Material Adverse Changeno shares of the Company’s common stock, (3) the Company or the Guarantorsecurities exercisable into or exchangeable for common stock, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or will have been issued prior to the Closing Date and (4) except for shares of Common Stock issued in the other representations and warranties organization of the Company or as described in the GuarantorPlan, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and which shares shall be canceled as of the Closing Date); at the time of the Conversion, the Offer Shares and the Exchange Shares will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable; except as described in the Prospectus, the issuance of the Offer Shares and the Exchange Shares is not subject to any preemptive or similar rights (except to extent that subscription rights and priorities thereto exist pursuant to the Plan). The Offer Shares and Exchange Shares will not, when issued, be subject to any preemptive rights, liens, charges, encumbrances or other claims created by the Company. Except as described in the Prospectus, there are no warrants or options to purchase any securities of the Company.
(j10) On Each Reorganization Application, including the date hereof Plan, has been approved by the IDFI and at the Closing DateFederal Reserve, as applicable, pursuant to the Conversion Regulations, the Agents HOLA and any applicable state laws and regulations, and the Prospectus has been authorized for use by the IDFI and the Federal Reserve and no action has been taken or is pending or, to such counsel’s knowledge, threatened by the IDFI or the Federal Reserve, to revoke such approvals and authorizations or suspend the Conversion.
(11) At the time the Reorganization Applications were approved by the IDFI and the Federal Reserve, each shall Reorganization Application, including the Prospectus and the Plan, as amended or supplemented, if amended or supplemented, complied as to form in all material respects with the requirements of the Conversion Regulations or the HOLA (other than the financial statements, notes to financial statements, stock valuation information and other financial, tabular and statistical data included therein, as to which no opinion need be rendered).
(12) The Federal Reserve and IDFI approvals of the Plan remain in full force and effect; to such counsel’s knowledge, the LPSB Parties have received from KPMG LLP a letterconducted the Conversion in all material respects in accordance with the requirements of the Conversion Regulations, in form federal and substance reasonably satisfactory Indiana law, all other applicable regulations, decisions and orders (except to the Agentsextent waived or otherwise approved by the Federal Reserve or the IDFI) and the Plan, containing statements including all material applicable terms, conditions, requirements and information of conditions precedent to the type ordinarily included in accountant’s “comfort letters” to agents Conversion imposed by the Federal Reserve and the IDFI except that no opinion need be rendered with respect to (a) the financial statements satisfaction of any post-closing filings and certain financial information contained in submissions; (b) the Preliminary Prospectus state securities or “blue sky” laws of various state jurisdictions to the extent they directly pertain to the obtaining or confirming exemptions, qualifications or the registration of the Common Stock under the state securities laws of all of the states of the United States and the Final District of Columbia and any territories of the United States or foreign jurisdictions; and (c) the rules and regulations of FINRA; the Plan complies in all material respects with all applicable federal law, rules, regulations, decisions and orders, including but not limited to the Conversion Regulations and the HOLA. Such counsel has been advised by the IDFI staff, the Federal Reserve staff and the Commission staff that no order has been issued by the IDFI, the Federal Reserve or the Commission and, to the knowledge of such counsel, no order has been issued by any state authority, to prevent the Conversion or the offer, sale or issuance of the Shares, or to suspend the Offering or the use of the Prospectus, and no action for such purposes has been instituted or, to the knowledge of such counsel, threatened by the IDFI, the Federal Reserve, the Commission, or any other state authority; and, to the knowledge of such counsel, no person has sought to obtain regulatory or judicial review of the final action of the IDFI or Federal Reserve approving the Plan, the Conversion Application, the Holding Company Application or the Prospectus or to otherwise prevent the Conversion or the offer, sale or issuance of the Shares.
(k13) Subsequent The LPSB Parties each have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated thereby and by the Plan and the Reorganization Applications; this Agreement has been duly authorized, executed and delivered by the LPSB Parties and is the legal, valid and binding agreement of the LPSB Parties enforceable against the LPSB Parties in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership and other laws of general applicability relating to or affecting creditors’ rights or the rights of creditors of depository institutions the deposits of which are insured by the FDIC, to general principles of equity (whether considered in an action at law or in equity) and to the extent that rights to indemnity and contribution thereunder may be limited under applicable federal or state securities laws or the policies underlying such laws.
(14) The Registration Statement is effective under the 1933 Act; any required filing of the Prospectus and any Permitted Free Writing Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time period required by Rule 424(b) or Rule 433 and no stop order proceedings with respect thereto have been instituted or to such counsel’s knowledge, are pending or threatened under the 1933 Act.
(15) All conditions imposed by the Federal Reserve or the IDFI in connection with its approvals of the Reorganization Applications have been satisfied, other than any post-closing filings and submissions, and no further approval, authorization, consent or other order of any federal or state regulatory, administrative or other governmental board or body is required in connection with the execution and delivery of this Agreement and prior to Agreement, the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction issuance of the possible changeShares and the consummation of the Conversion except as may be required under the securities or Blue Sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of FINRA (as to which no opinion need be rendered). The Registration Statement and the Prospectus and any amendments or supplements thereto, as of their respective effective or issue dates (other than the financial statements, notes to financial statements, stock valuation information and other financial, tabular and statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. The information in the rating accorded any Registration Statement and Prospectus under the captions “Our Policy Regarding Dividends,” “Supervision and Regulation,” “Taxation,” “The Conversion and Offering,” “Restrictions on Acquisition of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ CompaniesBancorp, Inc., ” and “Description of Capital Stock of ▇▇▇▇▇’▇▇ Investors ServiceBancorp, Inc., Fitch IBCA or, in each case, any successor Following the Conversion” to the rating agency business thereofextent that it constitutes matters of law, summaries of legal matters, documents or proceedings or legal conclusions, has been reviewed by ▇▇▇▇ and is correct in all material respects. The descriptions in the Prospectus of statutes or regulations are accurate summaries in all material respects and fairly present the information required to be shown. The description of the liquidation accounts as set forth in the Prospectus under the caption “The Conversion; Plan of Distribution—Liquidation Rights,” to the extent that such information constitutes matters of law and legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(l16) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates The terms and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale provisions of the Securities as contemplated Common Stock conform in all material respects to the description thereof contained in the Prospectus, and the form of certificate complies with the requirements of Maryland law.
(17) To such counsel’s knowledge, no action, suit or proceeding at law or in equity is pending or, to such counsel’s knowledge, threatened in writing against or affecting the LPSB Parties or any of their properties before or by any court or governmental official, commission, board or other administrative agency, authority or body, or any arbitrator, wherein an unfavorable decision, ruling or finding would have a material adverse effect on the consummation of this Agreement and or which is required to be disclosed in the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company Registration Statement or the GuarantorProspectus and is not so disclosed.
(18) To such counsel’s knowledge, there are no contracts or documents required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement, the performance of any of the agreements of the Company Prospectus or the Guarantor, Conversion Application that are not so filed or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.d
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder Agent as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their its obligations hereunder at or prior to the Closing Date and to the satisfaction of the following additional conditionsconditions on or before the Closing Date:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no No stop order suspending the use offer and/or sale of any prospectus relating to the Securities or of any notice objecting to its use Units shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or, to the knowledge of the Company or the Agent, threatened, by any Division or the Securities and Exchange Commission and any request of any Division for additional information to be included in the Memorandum or otherwise shall have been complied with to the Agent’s satisfaction.
(b) At the Closing Date, each The Agent shall not have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to advised the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus Memorandum, or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus any amendment thereof or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments supplement thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an contains any untrue statement of a material fact which, in the opinion of its legal counsel, is material, or omit that the Memorandum omits to state a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(c) The Agent shall have received an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ &Bockius LLP, counsel for the Company, dated as of the initial Closing Date and addressed to the Purchasers, in the form attached hereto at Exhibit C. In expressing the foregoing opinions, as to matters of fact relevant to conclusions of law, counsel may rely, to the extent reasonable, upon certificates of public officials and of the responsible officers of the Company, provided that copies of any such certificates of officers of the Company are attached to the opinion.
(d) The Agent shall have received from the Company a certificate, dated as of each Closing Date, of the principal executive officer and the principal financial officer of the Company to the effect that:
(1) The representations and warranties of the Company in this Agreement are true and correct as if made on the Closing Date. The Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at, or prior to, such date.
(2) As of the Closing Date, the Memorandum and any supplement or amendment thereto contained all statements and information required to be included therein, and the Memorandum (as supplemented or amended) did not include any untrue statement of a material fact (including the financial statements and any estimate, opinion or projection) or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
(3) Except as set forth in the SEC Documents:
a. Except as is otherwise expressly stated in the Memorandum, or any supplement or amendment thereto, there are no material actions, suits, or proceedings pending before any court or governmental agency, authority, or body to which the Company is a party or of which the business or property of the Company is the subject which could reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business, or prospects of the Company, materially and adversely affect its properties or assets, or prevent consummation of the transactions contemplated by this Agreement; and, to the best of the Company’s knowledge, no such actions, suits, or proceedings are threatened.
b. There are no tax deficiencies of the Company which might be asserted against the Company which would materially and adversely affect the Company’s business or properties and the Company has not been, since timely filed all applicable federal and state tax returns.
c. Subsequent to the date respective dates as of which information is given in the ProspectusMemorandum, and except as contemplated or referred to in the Memorandum, there has not been (i) any Material Adverse Changematerial transaction entered into by the Company (other than transactions in the ordinary course of business); (ii) any material obligation, direct or contingent, incurred by the Company (3other than obligations incurred in the ordinary course of business); (iii) any material change in the capital stock, short-term debt, or long-term debt of the Company; or (iv) any dividend or distribution of any kind declared, paid or made on the Company’s capital stock.
d. Subsequent to the dates as of which information is given in the Memorandum, the Company has not sustained any material loss of, or damage to, its properties, whether or not insured.
e. The Company is not in default of any debt, leasing or any other agreements, which default would be reasonably be expected to have a material adverse effect, individually or in the aggregate, on the Company or the GuarantorPrivate Placement.
f. Except as described in the Memorandum and this Agreement, other than the Agent, such subagents as applicablemay be employed by the Agent and Emergent, has in all material respects complied with all agreements and satisfied all conditions no person or entity is entitled, directly or indirectly, to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of compensation from the Company or the GuarantorAgent for current or past services as a finder, agent, broker or originator in connection with the transactions contemplated by this Agreement.
(4) On the initial Closing Date and if there are any changes in or updates to the Diligence Materials, on each Closing Date immediately following the delivery of such additional Diligence Materials, the Diligence Materials were prepared in good faith and represent the Company’s best present and future estimate of the Company’s financial condition as applicable, of the date set forth in Section 1(atherein.
(e) hereof are true and correct as though expressly made at and On each Closing Date, there shall have been furnished to the Agent a certificate of the secretary of the Company, dated as of the Closing Date, with the documents listed herein attached, and to the effect and certifying or recertifying to the Agent as follows:
(1) attached thereto are true and correct copies of the Certificate of Incorporation of the Company, as amended and restated to the date of the certificate, and stating that there have been no changes or amendments to the attached Certificate of Incorporation of the Company, and no proceedings pending or contemplated for: (i) the amendment of said Certificate of Incorporation, (ii) the merger, consolidation or dissolution of the Company, or (iii) the sale of all or substantially all of the assets or business of the Company shall have commenced since such date or shall be pending, and that the Company is in good standing and has paid all of its corporate franchise taxes due as of the date of such certificate.
(j2) attached thereto is a true and correct copy of the Bylaws of the Company, as amended to the date of such certificate, and that there have been no changes or amendments to the attached Bylaws and there are no proceedings pending or contemplated for the amendment of such Bylaws.
(3) attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation of the Memorandum and this Agreement, the issuance and sale of the Units and other transactions contemplated by this Agreement; the resolutions relating to such matters have not been amended, modified or rescinded, except as otherwise set forth in or attached to the certificate, and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to such matters.
(4) the person who has signed this Agreement was duly elected at the time of such signing and was duly acting as an officer of the Company.
(f) On initial Closing Date and if there are any changes in the date hereof and at numerical data set forth in the Memorandum or any supplement thereto, on each Closing Date immediately following the implication of such changes, there shall be furnished to the Agent, a letter from the Company’s chief financial officer, dated as of such Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory acceptable to the AgentsAgent, containing statements and certifying that the information set forth in the Memorandum expressed in numerical data, including, number of securities (or percentages) or dollars (or percentages derived from dollar amounts) have been compared to accounting records that are subject to the internal accounting controls of the type ordinarily included Company and are in accountant’s “comfort letters” to agents agreement in all material respects with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectussuch record or computations made therefrom, excluding any questions of legal interpretation.
(kg) Subsequent The Company shall deliver to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of Agent a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The Blue Sky Memorandum from ▇▇▇▇▇▇ ▇-▇▇▇▇ Companies&Bockius LLP, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel confirming that all necessary action for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance offer and sale of the Securities as contemplated Units by the Company has taken place or when such action must take place with respect to jurisdictions requiring post-sale qualifications or filings (with an undertaking to complete such post-sale qualifications and filings). All such opinions, certificates, letters, and documents will be in this Agreement compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and its legal counsel. All statements contained in any certificate, letter, or other document delivered pursuant hereto by, or on behalf of, the matters referred Company shall be deemed to in Section 7(b) constitute representations and in order to evidence the accuracy and completeness of any warranties of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein containedCompany. If any of the conditions specified in this Section 7 shall 5 cannot have been be fulfilled when and as required by this Agreement(other than a condition failure resulting from the Agent’s bad faith or willful misconduct), this Agreement and all obligations of the Agent hereunder may be terminated by canceled at the Agents on notice discretion of the Agent, and all subscription proceeds from the Shares shall be promptly delivered to the Company at any time at subscribers, without interest or prior to the Closing Date, and deduction. Any such termination cancellation shall be without liability of any party the Agent to any other party except as provided the Company. The Agent may waive, in Section 6 herein. Notwithstanding any such terminationwriting or otherwise, the provisions performance of Sections 1, 6, 8, 9 and 10 herein shall remain any one or more of the conditions specified in effectthis Section 5 or extend the time for their performance.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations obligation of the Agents hereunder shall be Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of Notes, and the obligation of any Agent to purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy accuracy, on each Representation Date, of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Datein this Agreement, to the accuracy of the statements of the Company and the Guarantor Company's officers made in any certificates certificate furnished pursuant to the provisions hereofof this Agreement, to the performance by the Company and the Guarantor of their its obligations hereunder at or prior to the Closing Date under this Agreement and to each of the following additional terms and conditions:
(a) The Final Supplement Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes shall have been filed with the Reviewing Authority and the other Qualifying Authorities Commission pursuant to Rule 424(b) under the Shelf ProceduresSecurities Act within the applicable time period prescribed for such filing by the Rules and Regulations and in accordance with Sections 3(a) and 3(k); and no stop order suspending the use effectiveness of the Registration Statement or any prospectus relating part thereof nor any order directed to the Securities or of any notice objecting to its use document incorporated by reference in any Prospectus shall have been issued and no proceedings proceeding for that purpose shall have been instituted initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or any Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Agents. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Winston & ▇▇▇▇▇▇ & Harcourt LLP▇, Canadian counsel for to the Agents, shall have furnished to such Agent such opinion or opinions, dated as of the Closing Date, with respect to such customary the incorporation of the Company, the validity of the Indenture, the Notes, the Registration Statement, the Prospectus and other related matters as the Agents such Agent may reasonably require. In giving such opinion, request; and such counsel shall have received such papers and information as they may rely, as reasonably request to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, enable them to pass upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At The General Counsel of the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian Company or other counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantorfurnished to such Agent their written opinions, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to such Agent, to the effect that:
(i) The Company has the authorized equity capitalization as set forth in the Prospectus;
(ii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(iii) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject, other than proceedings which would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(iv) This Agreement and any applicable Purchase Agreement have been duly authorized, executed and delivered by the Company;
(v) The Notes have been duly authorized by the Company and, when the terms of the Notes and of their issuance and sale have been duly established in accordance with the Indenture (including any supplemental indenture thereto), this Agreement and the applicable Purchase Agreement, if any, and when each of the Notes has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture (including any supplemental indenture thereto) and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and will constitute a valid and legally binding obligation of the Company entitled to the benefits of the Indenture (including any supplemental indenture thereto) and enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture (including any supplemental indenture thereto) and the Notes conform in all material respects to the descriptions thereof in the Prospectus;
(vi) The Indenture (including any supplemental indenture thereto) has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Notes, the compliance by the Company with all of the provisions of the Notes, the Indenture (including any supplemental indenture thereto), this Agreement and any applicable Purchase Agreement and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation, as amended, or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or qualification of or with any court or any governmental agency or body is required for the solicitation of offers to purchase the Notes, the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Indenture (including any supplemental indenture thereto), except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the solicitation by the Agents of offers to purchase the Notes from the Company and with purchases of the Notes by an Agent as principal, as the case may be, in each case in the manner contemplated hereby;
(ix) As of the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion), as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said acts;
(x) To such counsel's knowledge, there are no contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been so filed; and
(xi) The Registration Statement was declared effective under the Securities Act on August 1, 2001; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the applicable time period prescribed for such filing by the Rules and Regulations; and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, and to such counsel's knowledge, no proceeding for that purpose is pending or threatened by the Commission. In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and representatives of and counsel for the Agents, to during the effect course of which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained in or incorporated by reference in the Registration Statement and Prospectus (except as set forth in Annex A hereto. In delivering the last clause of subparagraph (v) above), and that such certificate, such officer may relycounsel has, to the extent he deems appropriate such counsel may properly do so in the circumstancesdischarge of its professional responsibilities as experienced securities law practitioners, relied upon certificates the judgment and statements of officers and representatives of the Company or with respect to facts necessary to the Guarantor determination of materiality. As a result of such consideration and upon certificates participation, nothing has come to the attention of public officials.
(i) At such counsel which causes such counsel to believe that the Closing DateRegistration Statement, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing DateEffective Time or, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectusif later, as amended or supplemented at of the Closing Datedate of the Company's most recent filing of an Annual Report on Form 10-K, does not contain contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of such opinion, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (except that, (2) there has in each case, such counsel need not been, since express any belief as to the date as of which information is given financial statements and related schedules and other financial data included or incorporated by reference in the ProspectusRegistration Statement or the Prospectus or the Form T-1 under the Trust Indenture Act). In rendering such opinion, any Material Adverse Changesuch counsel may state that their opinion is limited to the federal laws of the United States, (3) the laws of the State of New York and the General Corporation Law of the State of Delaware and rely as to matters of fact upon the representations contained in this Agreement and the certificates of officers of the Company or and of public officials.
(d) The Company shall have furnished to the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to Agents on the Closing Date a letter of ▇▇▇▇▇ & Young LLP, addressed jointly to the Company and the Agents and dated the Closing Date, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72, and covering such additional financial statement items and procedures (4including a review of interim financial statements specified in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 71) as the Agents may reasonably request and in form and substance satisfactory to the Agents.
(e) The Company shall have furnished to the Agents a certificate, dated the Closing Date, of its Chief Financial Officer or Treasurer and its General Counsel or other counsel stating that the representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof 1 of this Agreement are true and correct as though expressly made at of such date; the Company has performed all of its agreements contained in this Agreement which are required to be performed on or before the date of such certificate and as the conditions set forth in subsection 5(f) of this Agreement have been fulfilled; and no stop order suspending the effectiveness of the Closing DateRegistration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission.
(ji) On Neither the Company nor any of its subsidiaries shall have sustained, since the date hereof of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus and at (ii) since such date there shall not have been any change in the Closing Datecapital stock (other than issuances of common stock pursuant to benefit plans or stock options, repurchases by the Company or conversion of outstanding convertible securities) or long-term debt (except changes as a result of maturities, sinking fund payments, amortization of debt discount or currency fluctuations) of the Company or any of its subsidiaries (otherwise than as set forth or contemplated in the Prospectus or in a supplement thereto) or any change in or affecting, or any adverse development which affects, the Agents each shall have received from KPMG LLP business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries as a letterwhole, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in form and substance reasonably satisfactory to any such case described in clause (i) or (ii), is, in the judgment of the Agents, containing statements so material and information adverse as to make it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes, or with the type ordinarily included in accountant’s “comfort letters” purchase of Notes as principal pursuant to agents with respect to an applicable Purchase Agreement, as the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectuscase may be.
(kg) Subsequent to the execution and delivery of this Agreement and prior to the Closing DateAgreement, there shall not have been occurred any downgradingof the following: (i) a suspension or material limitation in trading in securities of the Company or securities generally on the New York Stock Exchange, nor any notice given Inc.; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any intended such event specified in this subsection (g) in the judgment of such Agent makes it impracticable or potential inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes or the purchase of Notes from the Company as principal pursuant to the applicable Purchase Agreement or otherwise, as the case may be, on the terms and in the manner contemplated in the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, 's debt securities by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇'▇ Companies, Inc., ▇▇▇▇▇’▇ Investors Investor Service, Inc., Fitch IBCA or, in each case, Inc. or Standard & Poor's Rating Services or (ii) any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents such organization shall have been furnished publicly announced that it has under surveillance or review, with all such documentspossible negative implications, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness its rating of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effectCompany's debt securities.
Appears in 1 contract
Sources: Distribution Agreement (Maytag Corp)
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec Quebec, British Columbia and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates date of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing datesdate, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement Supplement, and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicableand excluding the Prospectus Financial Information).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates date of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin KPMG LLP, dated as of such respective filing datesdate, to the effect that the French language version of (i) all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Prospectus Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such the Prospectus Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President, Regulatory of the CompanyRegulatory, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings GroupS&P Global Ratings, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, S&P Global Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA Ratings Ltd. or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of Each Agent’s obligation to solicit purchases on an agency basis for the Agents hereunder Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Units pursuant to any Terms Agreement shall be subject to the accuracy satisfaction of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The Final Supplement representations, warranties and agreements on the part of the Partnership and the General Partner herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Partnership and the General Partner or any subsidiary of the Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects; it being further understood that such representations, warranties and agreements incorporate any modifications to the representations, warranties and agreements set forth in Sections 3(d), 3(e), 3(i) through (p), and 3(ee) hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that the Partnership shall have provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(ii) Each of the Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Partnership until the Principal Settlement Date, trading in the Common Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(nn) hereof shall have occurred or shall exist, which event or condition is not described in the Prospectus and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Partnership or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Partnership or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus prior to any related Time of Sale.
(vi) The Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Units.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g) under the Securities Act shall have been received by the Partnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been filed with the Reviewing Authority and the other Qualifying Authorities Commission under the Shelf Procedures; and no order suspending Securities Act (in the use case of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have reliedPermitted Free Writing Prospectus, to the extent they deem proper, upon certificates of officers required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Company Agents; and (D) no suspension of the qualification of the Units for offering or the Guarantor sale in any jurisdiction, and upon certificates no initiation or threatening of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Dateany proceedings for any of such purposes, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPoccurred and be in effect. The Registration Statement, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or the Final any Permitted Free Writing Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (2) there has not been, since misleading at the date as of which information is given in time an Agent delivers a Transaction Acceptance to the Prospectus, any Material Adverse Change, (3) the Company Partnership or the GuarantorPartnership and an Agent execute a Terms Agreement, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Datecase may be.
(jix) On No amendment or supplement to the date hereof and at the Closing DateRegistration Statement, the Agents each Prospectus or any Permitted Free Writing Prospectus shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory been filed to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for which the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated objected in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effectwriting.
Appears in 1 contract
Sources: Distribution Agreement (MPLX Lp)
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the each Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the each Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the each Guarantor of their its obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇H▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor Guarantors upon the opinion of counsel for the Company and the GuarantorGuarantors. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇M▇▇▇▇ LLP, United States counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, regarding enforceability of the subordination agreements to be entered into simultaneously with the execution of the Supplemental Indentures (as contemplated therein) and regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or and the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such the Preliminary Prospectus and the Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇M▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or and the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively as applicable (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 2008 and 2008 2007 and the Management’s 's Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June September 30, 2010 2009 and for the three and six nine months ended June September 30, 2010 2009 and 2009 2008 and the Management’s 's Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “"Financial Information”")), ) is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or and the Final Prospectus, as applicable, Prospectus is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇K▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company Company, any Vice President of RWP and any Vice President of the GuarantorRCCI, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s 's knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company Company, RWP or the GuarantorRCCI, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company Company, RWP or the GuarantorRCCI, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “'s "comfort letters” " to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s 's long term debt, including the Securities, by Standard and Poor’s 's Ratings Group, a division of The ▇M▇▇▇▇▇-▇▇▇▇ Companies, Inc., M▇▇▇▇▇’'▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the GuarantorGuarantors, the performance of any of the agreements of the Company or the GuarantorGuarantors, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company Blue Pearl of its covenants and the Guarantor of their obligations agreements hereunder at or prior to the Closing Date and to the satisfaction of the following additional conditionsconditions at the Closing Time and any Option Closing Time:
(a) The Final Supplement the Agents shall have been filed with received legal opinions dated the Reviewing Authority Closing Date or the Option Closing Date, as the case may be, from Blue Pearl’s Canadian Counsel and U.S. Counsel addressed to the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus Agents, relating to the Offering and as to the laws of Canada and the Qualifying Jurisdictions, in form and substance satisfactory to Agents’ Canadian Counsel, acting reasonably, to the effect that:
(i) Blue Pearl and each of its Subsidiaries exists and has not been dissolved under the laws of its governing jurisdiction and each has all necessary corporate power and capacity to own or lease its property and assets and to carry on its business as now conducted;
(ii) each of Blue Pearl and Blue Pearl Subco has the necessary corporate power and capacity, and each of them has taken all necessary corporate action, to duly:
(A) execute, deliver and perform its obligations under each of the Offering Agreements and the Acquisition Agreement;
(B) create, issue and sell the Subscription Receipts;
(C) allot, issue and deliver the Common Shares issuable upon the exchange of the Subscription Receipts in accordance with the terms thereof;
(D) create, allot, issue and deliver the Warrants issuable upon exchange of the Subscription Receipts in accordance with the terms thereof; and
(E) allot, issue and deliver the Warrant Shares issuable upon exercise of the Warrants in accordance with the terms thereof;
(iii) each of the Offering Agreements and the Acquisition Agreement has been duly executed and delivered by Blue Pearl and Blue Pearl Subco, as the case may be, and constitutes a legal, valid and binding obligation of Blue Pearl and Blue Pearl Subco, as the case may be, enforceable against it in accordance with its respective terms except as may be limited by the Enforceability Qualifications;
(iv) each of:
(A) the execution and delivery of each of the Offering Agreements, the Acquisition Agreement and the fulfilment of the respective terms thereof;
(B) the issue and sale of the Subscription Receipts and the issue of the Underlying Securities issuable upon the exchange of the Subscription Receipts in accordance with the terms thereof; and
(C) the issue of the Warrant Shares upon exercise of the Warrants in accordance with the terms thereof; does not and will not conflict with, result in a breach of, or create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any notice objecting applicable laws or any term or provision of the articles and by-laws of Blue Pearl or Blue Pearl Subco, or any indenture, contract, agreement (written or oral), instrument, lease or other document to which Blue Pearl and/or Blue Pearl Subco is a party or by which it is bound on the Closing Date (and of which such counsel is aware), which might reasonably be expected to adversely affect the business, operations, capital or condition (financial or otherwise) of Blue Pearl and/or Blue Pearl Subco or each of its use shall assets;
(v) the Subscription Receipts have been issued and no proceedings are duly authorized, executed and delivered by Blue Pearl and are enforceable against Blue Pearl in accordance with their terms and the terms of the Subscription Receipt Agreement, except as enforcement may be limited by the Enforceability Qualifications, and the holders of Subscription Receipts are entitled to the benefits provided by the Subscription Receipt Agreement;
(vi) the Common Shares issuable upon exchange of the Subscription Receipts will, upon exchange of the Subscription Receipts in accordance with the terms thereof, be validly issued by Blue Pearl without further action on the part of Blue Pearl and will be outstanding as fully paid and non-assessable Common Shares;
(vii) the Warrants issuable upon exchange of the Subscription Receipts will, upon exchange of the Subscription Receipts in accordance with the terms thereof, be validly issued by Blue Pearl without further action by Blue Pearl and will be enforceable against Blue Pearl in accordance with their terms and the terms of the Warrant Indenture, except as may be limited by the Enforceability Qualifications, and will be entitled to the benefits provided by the Warrant Indenture;
(viii) the Warrant Shares issuable upon exercise of the Warrants will, upon exercise of the Warrants in accordance with the terms thereof, including payment of exercise price, be validly issued by Blue Pearl without further action on the part of Blue Pearl and will be outstanding as fully paid and non-assessable Common Shares;
(ix) the text under the headings “Eligibility for that purpose shall Investment” and “Canadian Federal Income Tax Considerations” in the Prospectus constitutes an accurate statement of law subject to the assumptions and other qualifications referred to therein;
(x) all necessary documents have been instituted or threatened.filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by Blue Pearl under the Securities Laws to qualify the Subscription Receipts for distribution in each of the Qualifying Jurisdictions through registrants registered under the applicable legislation in the Qualifying Jurisdictions who comply with the relevant provisions of such applicable legislation;
(bxi) At the Closing Dateissue and delivery of
(A) the Underlying Securities to the holders of Subscription Receipts upon exchange thereof pursuant to the terms thereof; and
(B) the Warrant Shares to the holders of Warrants upon exercise thereof pursuant to the terms thereof; are exempt from the prospectus and registration requirements of Securities Laws and no documents are required to be filed, each Agent shall proceedings taken or approvals, permits, consents, orders or authorizations required to be obtained under Securities Laws (other than such as have received a signed opinion been filed or obtained) to permit such issue and delivery (subject to the qualifications prescribed by National Instrument 45-102 Resale of OslerSecurities);
(xii) the first trade of the Underlying Securities and the Warrant Shares issued as described in the preceding paragraph is exempt from the prospectus requirements of Securities Laws and no documents are required to be filed, ▇▇▇▇▇▇ proceedings taken or approvals, permits, consents, order or authorizations required to be obtained under Securities Laws (other than such as have been filed or obtained) to permit such trade (subject to the usual qualifications prescribed National Instrument 45-102 Resale of Securities);
(xiii) the Subscription Receipts, the Underlying Securities and the Warrant Shares have been conditionally approved for listing on the TSX, subject to Blue Pearl fulfilling the usual requirements of the TSX;
(xiv) Equity Transfer & Harcourt LLP, Canadian counsel Trust Company has been duly appointed as (i) registrar and transfer agent for the AgentsCommon Shares, dated as (ii) the Warrant Agent, and (iii) the Escrow Agent;
(xv) the authorized capital of Blue Pearl consists of an unlimited number of Common Shares and an unlimited number of first preferred shares, issuable in series;
(xvi) Blue Pearl is a reporting issuer in each of the Closing Dateprovinces of Canada and is not included in the list of defaulting reporting issuers maintained by the securities commissions in each of the provinces of Canada under the respective securities legislation;
(xvii) the attributes of the Subscription Receipts, the Underlying Securities and the Warrant Shares are consistent in all material respects with respect the description thereof in the Prospectus; and
(xviii) the certificates representing the Subscription Receipts, the Common Shares and Warrants are in proper legal form and comply with the requirements of applicable law and, in the case of the Warrants and the Common Shares, the requirements of the TSX as to the form and content, and such customary matters as certificates have been duly authorized by Blue Pearl and the Agents may reasonably requireregistered holders from time to time of such certificates are entitled to the benefits thereof and are subject to the restrictions contained therein. In giving such opiniontheir opinions, such Blue Pearl’s Canadian Counsel shall be entitled to rely exclusively upon the opinions of local counsel may as to the matters mentioned above relating to jurisdictions other than Ontario and shall be entitled to rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem properfact, upon certificates of officers of the Company or the Guarantor Blue Pearl, Blue Pearl’s registrar and upon transfer agent and on certificates of public and stock exchange officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.;
(cb) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, from Blue Pearl’s Quebec counsel to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language have been complied with in connection with the distribution sale of the Securities.Subscription Receipts to purchasers in Quebec;
(gc) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇certificate, Vice Presidentor certificates, Regulatory dated the Closing Date and each Option Closing Date and executed by each of the CompanyChief Executive Officer and the Chief Financial Officer of Blue Pearl, dated as or such other officers of Blue Pearl agreed to by the Closing DateCo-Lead Agent and Blue Pearl, in form and substance satisfactory to the Agents and counsel for the Agentsacting reasonably, on behalf of Blue Pearl, without personal liability, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.that:
(i) At a Final Receipt has been issued by the Closing DateOntario Securities Commission as the principal regulator of Blue Pearl under the MRRS, and no order suspending or preventing the Agents shall have received a certificate of any two Vice Presidents use of the Company Prospectus or any Supplementary Material or cease trading the Subscription Receipts or any other securities of Blue Pearl has been issued, and no proceedings for that purpose have been instituted or threatened by any Vice President of the Guarantor, in each case dated as of the Closing Date, Securities Regulator;
(ii) subsequent to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date respective dates as of which information is given in the ProspectusProspectus and any Supplementary Material, there has not been any Material Adverse Changematerial adverse change, or any development involving a prospective material adverse change, in the Condition of Blue Pearl or, to the best knowledge of such officers, the Condition of T▇▇▇▇▇▇▇ Creek;
(3iii) subsequent to the respective dates as of which information is given in the Prospectus and any Supplementary Material, no transaction out of the ordinary course of business, material to Blue Pearl and its Subsidiaries on a consolidated basis or to, the best knowledge of such officers, T▇▇▇▇▇▇▇ Creek and its Subsidiaries on a consolidated basis has been entered into by Blue Pearl or, to the best knowledge of Blue Pearl, T▇▇▇▇▇▇▇ Creek or any of their respective Subsidiaries or has been approved by the management of any of them;
(iv) the Company or the Guarantor, as applicable, has representations and warranties of Blue Pearl contained in this Agreement are true and correct in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to as of the Closing Date and (4) the other representations and warranties of the Company or the GuarantorOption Closing Date, as applicablethe case may be, set forth in Section 1(a) hereof are true with the same force and correct effect as though expressly if made at and as of the Closing Date.Time or the Option Closing Time, as the case may be, after giving effect to the transactions contemplated hereby; and
(jv) On Blue Pearl has duly complied in all material respects with all the date hereof terms and at conditions of this Agreement on its part to be complied with up to the Closing DateTime or the Option Closing Time, as the case may be;
(d) in the event of the offering and sale of Subscription Receipts in the United States or to, or for the account or benefit of, a U.S. Person or a person within the United States pursuant to Section 18 hereof, the Agents each shall have received an opinion from KPMG LLP a letter, in form U.S. Counsel addressed to each of Blue Pearl and substance reasonably satisfactory to the Agents, containing statements to the effect that (i) it is not necessary in connection with the offer and information sale of the type ordinarily included in accountant’s “comfort letters” to agents with respect Subscription Receipts to the financial statements U.S. Purchasers to register the Subscription Receipts under the 1933 Act, it being understood that no opinion is expressed as to any resale of the Subscription Receipts; and certain financial information contained (ii) assuming that the Underlying Securities are issued by Blue Pearl exclusively to U.S. Purchasers in exchange for the Subscription Receipts and no commission or other remuneration is paid or given directly or indirectly for soliciting such exchange, no registration of the Underlying Securities under the 1933 Act is required for the issuance of the Underlying Securities by Blue Pearl in the Preliminary Prospectus United States, it being understood that no opinion is expressed as to any resale of the Common Shares or Warrants and as to the Final Prospectus.issuance or resale of the Warrant Shares;
(ke) Subsequent to the execution Agents shall have received comfort letters of Blue Pearl’s Auditors and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The T▇▇▇▇▇▇-▇▇▇▇ CompaniesCreek’s Auditors dated the Closing Date and each Option Closing Date in form and substance satisfactory to Agents’ Canadian Counsel, Inc.acting reasonably, ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor similar to the rating agency business thereof.comfort letters to be delivered to the Agents pursuant to Section 5(l)(e) hereof, and updated to a date not less than two days prior to the Closing Date or the Option Closing Date, as the case may be;
(lf) At the definitive terms of the Subscription Receipts (including the form of the global Subscription Receipt certificate) and the Subscription Receipt Agreement shall be satisfactory to the Agents and the Agents’ Canadian Counsel, acting reasonably;
(g) the definitive terms of the Warrants (including the form of the global Warrant certificate) and the Warrant Indenture shall be satisfactory to the Agents and the Agents’ Canadian Counsel, acting reasonably;
(h) the Subscription Receipt Agreement shall have been executed and the gross proceeds from the sale of the Subscription Receipts shall have been deposited into escrow thereunder;
(i) on the Closing Date, counsel conditional approval for the listing on the TSX shall have been granted in respect of the Subscription Receipts, the Underlying Securities and the Warrant Shares;
(j) Blue Pearl shall have delivered the definitive certificate or certificates representing the Subscription Receipts; and
(k) the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale received from each of the Securities as contemplated executive officers and directors of Blue Pearl written undertakings in this Agreement and favour of the matters referred Agents agreeing not to in Section 7(b) and in order to evidence the accuracy and completeness sell, transfer, assign, pledge or otherwise dispose of any securities of Blue Pearl owned or controlled, directly or indirectly, by such officers and directors for a period of 90 days following the date of issuance of the representationsFinal Receipt by the Ontario Securities Commission, warranties or statements as principal regulator, without the prior written consent of GMP Securities L.P. and UBS Securities Canada Inc. on behalf of the Company or the GuarantorAgents, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall such consent not have been fulfilled when and as required by this Agreement, this Agreement may to be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effectunreasonably withheld.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇H▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇M▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates date of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, dated as of such respective filing datesdate, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement (excluding the sections entitled therein as “Consolidated Capitalization”, “Earnings Coverage” and “Auditors’ Consent”, such sections collectively referred to herein as the Final Supplement, as applicable“Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates date of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇M▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing datesdate, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing datesdate, to the effect that the French language version of (A) the Prospectus Financial Information and (B) the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Prospectus Financial Information and Financial Information, respectively.
(h) At the Closing Date, the Agents shall have received a certificate from ▇K▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorGuarantor , in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the GuarantorGuarantor , as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇M▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇M▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the date hereto, the applicable Time of Sale, any First Closing Date as if made on Date, the date the Series 2 Canadian Final Prospectus is filed with the Qualifying Authorities and as of the Second Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates delivered to the Agents pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their its obligations hereunder at or prior to the applicable First Closing Date or Second Closing Date, as the case may be, and to the following additional conditions:
(a) (i) The applicable Canadian Final Supplement Prospectus shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; Procedures and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purposes shall have been instituted or threatened; (ii) the applicable U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10; (iii) the Term Sheets contemplated by Section 5(b) hereof and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and (iv) no stop order suspending the effectiveness of the Registration Statement or the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission.
(b) At the applicable Closing Date, each Agent shall have received a signed opinion of Osler, ▇▇▇▇▇▇ & Harcourt Stikeman Elliott LLP, Canadian counsel for the AgentsCompany, dated as of such date, addressing such Canadian legal matters set forth in Schedule VII attached hereto and any other Canadian legal matters reasonably requested by the Agents as a result of any fact which arises or is discovered during the period from the date of this Agreement to the Second Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & , ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec British Columbia and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(dc) At the applicable Closing Date, each Agent shall have received a signed opinion and letter of CravathSkadden, Swaine Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, United States counsel for the Company and the GuarantorCompany, dated as of such date, addressing such matters set forth in Schedule VIII attached hereto and any other matters reasonably requested by the Agents as a result of any fact which arises or is discovered during the period from the date of this Agreement to the Second Closing Date. Such counsel may state that, regarding non-contravention insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of material agreements officers of the Company which are governed by New York lawand upon certificates of public officials.
(ed) On At the respective dates time of filing of any Canadian Final Prospectus and any Preliminary Prospectus filed with the Preliminary Supplement and the Final SupplementQualifying Authorities, each Agent shall have received an opinion of Davies Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated as of such respective filing datesdate, to the effect that the French language version of the Preliminary Base Prospectus and the Series 1 Canadian Final Prospectus or the Series 2 Canadian Final Prospectus, as applicable, (excluding the sections entitled “Earnings Coverage” and “Consolidated Capitalization” (such sections collectively referred to herein as the “Prospectus (as applicable Financial Information”)) and in each case excluding all other documents incorporated by reference thereinreference, other than excluding the Preliminary Supplement audited financial consolidated financial statements as at December 31, 2012, December 31, 2011 and January 1, 2011 and for the years ended December 31, 2012 and 2011 and the Final Supplementunaudited consolidated financial statements as at September 30, as applicable) 2013 and for the nine months ended September 30, 2013 and 2012 and the Management’s Discussion and Analysis of Financial Conditions and Results of Operations in respect of each of those statements (collectively, the “Financial Information”), is in all material respects a complete and adequate translation of the English language version of all such documents.
(e) At the time of filing of any Canadian Final Prospectus (excluding all other documents filed with the Qualifying Authorities, each Agent shall have received an opinion of KPMG LLP, dated as of such date, to the effect that the French language version of Prospectus Financial Information and the Financial Information incorporated by reference therein, other than in the Preliminary Supplement and Series 1 Canadian Final Prospectus or the Series 2 Canadian Final SupplementProspectus, as applicable), is in all material respects a complete and adequate translation of the English language version of all such Prospectus Financial Information and Financial Information, respectively.
(f) At or prior to each First Closing Date, the Agents shall have received satisfactory evidence of the approval of the listing and posting for trading on the TSX of the Series 1 Debentures, subject only to the satisfaction by the Company of the conditions imposed by the TSX, as set out in the letter from the TSX granting conditional listing approval of the Series 1 Debentures.
(g) At or prior to each First Closing Date, the Company shall deliver or cause to be delivered to the Agents evidence satisfactory to the Agents that the Common Shares issuable upon the conversion, redemption or maturity of the Series 1 Debentures or in satisfaction of the Company’s obligations to pay interest or a make-whole payment under the Series 1 Debentures, and the Common Shares issuable upon the exercise of the Series 1 Warrants, have been conditionally approved for listing on the TSX and NYSE MKT, subject to the Company fulfilling the TSX and NYSE MKT requirements. The Agents acknowledge that such conditional approval may include a limitation on the number of Common Shares that are conditionally approved for listing.
(h) At the time of filing the Series 2 Canadian Final Prospectus with the Qualifying Authorities, the Agents shall have received satisfactory evidence of the approval of the listing and posting for trading on the TSX of the Series 2 Debentures, subject only to the satisfaction by the Company of the conditions imposed by the TSX, as set out in the letter from the TSX granting conditional listing approval of the Series 2 Debentures.
(i) At or prior to the filing of the Series 2 Canadian Final Prospectus with the Qualifying Authorities, the Company shall deliver or cause to be delivered to the Agents evidence satisfactory to the Agents that the Common Shares issuable upon the conversion, redemption or maturity of the Series 2 Debentures or in satisfaction of the Company’s obligations to pay interest or a make-whole payment under the Series 2 Debentures, and the Common Shares issuable upon the exercise of the Series 2 Warrants, have been conditionally approved for listing on the TSX and NYSE MKT, subject to the Company fulfilling the TSX and NYSE MKT requirements. The Agents acknowledge that such conditional approval may include a limitation on the number of Common Shares that are conditionally approved for listing.
(j) The Company shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement for the issuance thereunder of the Series 2 Securities, provided that if at any time the Company shall be ineligible to utilize the Registration Statement for the purpose of such issuances, the Company shall promptly (i) notify the Agents in writing that such event has occurred, (ii) amend the Registration Statement or file with the Commission a new registration statement on such other form as may be necessary (and cause such registration statement to be effective as soon as practicable) in order to maintain the effectiveness of a registration statement for this purpose, and (iii) notify the Agents in writing that the Registration Statement has been amended or a new registration statement has been filed with the Commission on such other form as required to maintain the effectiveness of a registration statement for this purpose. For so long as any of the Warrants remain outstanding, the Company shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement for the issuance thereunder of the Common Shares issuable upon exercise of the Warrants (the “Warrant Shares”), provided that if at any time while the Warrants are outstanding the Company shall be ineligible to utilize the Registration Statement for the purpose of issuance of the Warrant Shares, the Company shall promptly amend the Registration Statement or file with the Commission a new registration statement on such other form as may be necessary (and cause such registration statement to be effective as soon as practicable) in order to maintain the effectiveness of a registration statement for this purpose. If at any time following the date hereof and prior to the date that no Warrants remain outstanding the Registration Statement is not effective or is not otherwise available for the issuance of the Debentures, the Warrants or the Warrant Shares or any prospectus contained therein is not available for use, the Company shall immediately notify the Agents and holders of the Securities in writing that the Registration Statement is not then effective or a prospectus contained therein is not available for use and thereafter shall promptly notify the Agents and such holders when the Registration Statement is effective again (or a new registration statement has been filed) and available for the issuance of such Securities or such prospectus is again available for use.
(k) At the applicable Closing Date, each Agent shall have received an opinion of Davies Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, dated the Closing Dateas of such date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(gl) On At the respective dates of filing of the Preliminary Supplement and the Final Supplementapplicable Closing Date, each Agent shall have received (i) an a favourable title opinion of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLPfrom local counsel retained by the Company reasonably acceptable to the Agents, dated as of such respective filing datesdate, addressing such matters set forth in Schedule VIV attached hereto and any other matters reasonably requested by the Agents as a result of any fact which arises or is discovered during the period from the date of this Agreement to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial InformationSecond Closing Date.
(hm) At the Closing Date, the Agents shall have received a certificate from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the applicable Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorCompany, in each case dated as of the Closing Datesuch date, to the effect that the signers of such certificate have examined the Registration Statement, the Series 1 Disclosure Package or the Series 2 Disclosure Package, as applicable, the Series 1 Canadian Final Prospectus or the Series 2 Canadian Final Prospectus, as applicable, the Series 1 U.S. Final Prospectus or the Series 2 U.S. Final Prospectus, as applicable, and any supplements or amendments thereto, the Securities, the Base Indenture, the First Supplement or the Second Supplement, as applicable, the Warrants and this Agreement and that, to the best of such signer’s knowledge after due investigation and not in a personal capacity, : (1) the ProspectusSeries 1 Disclosure Package or the Series 2 Disclosure Package, as amended or supplemented at of the Closing Dateapplicable Time of Sale, does did not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date dates as of which information is given in the Series 1 Disclosure Package or the Series 2 Disclosure Package, as applicable, the Series 1 Canadian Final Prospectus or the Series 2 Canadian Final Prospectus, any as applicable, and the Series 1 U.S. Final Prospectus or the Series 2 U.S. Final Prospectus, as applicable, a change, development, event or circumstance that have a Material Adverse ChangeEffect, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the applicable Closing Date Date, and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the applicable Closing Date.
(jn) On At each Time of Sale, the date hereof time of filing of any Canadian Final Prospectus and at the applicable Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary applicable Disclosure Package, the applicable Canadian Final Prospectus and the applicable U.S. Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(lo) At the applicable Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the GuarantorCompany, the performance of any of the agreements of the Company or the GuarantorCompany, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Second Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 hereinhereof. Notwithstanding any such termination, the provisions of Sections Section 1, Section 6, Section 8, 9 Section 9, Section 10, Section 16 and 10 herein Section 18 hereof shall remain in effect.
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Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, ▇H▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & ▇M▇▇▇▇ LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, dated as of such respective filing dates, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, as applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies ▇W▇▇▇ ▇▇▇▇▇▇▇▇ & ▇V▇▇▇▇▇▇▇ LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of Fasken ▇M▇▇▇▇▇▇▇▇ DuMoulin LLP, dated as of such respective filing dates, to the effect that the French language version of all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from ▇K▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President, Regulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorGuarantor , in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the GuarantorGuarantor , as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by Standard and Poor’s Ratings Group, a division of The ▇M▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇M▇▇▇▇’▇ Investors Service, Inc., Fitch IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
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