Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Québec herein, to the accuracy of the statements of authorized representatives of Québec made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent: (a) At Closing Time, the Agents, and, in the case of the opinions referred to in Sections 5(a)(2) and 5(a)(3), at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received: (1) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Québec or other counsel satisfactory to the Agents, in form and substance satisfactory to the Agents and the Agents’ counsel, to the effect that: (i) The Notes have been duly authorized; and, under the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec court: 1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec, 2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations, 3. a decision on the same matter either (i) is pending before or has been rendered by a Québec court or (ii) has been rendered by a foreign tribunal and is recognizable in Québec, 4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce obligations resulting from the taxation laws of Québec, or 5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party; (ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec; (iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto; (iv) All necessary actions have been duly taken by or on behalf of Québec, and all necessary authorizations and approvals under the laws of Québec have been duly obtained, for the authorization, execution and delivery by Québec of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Calculation Agency Agreement, any Terms Agreement and the Notes and for the issuance and sale of the Notes pursuant to this Agreement, any Terms Agreement and the Fiscal Agency Agreement, and there are no laws of Canada applicable to any such authorization, execution, delivery, issuance, or sale, and no authorizations or approvals under the laws of Canada are necessary therefor; (v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement and the Notes, subject to the following qualifications: 1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and 2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment; (vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance and sale of the Notes on the terms set forth herein and in the Terms Agreement, are exact translations and are not susceptible to any materially different interpretation with respect to any material matter therein; (vii) Such counsel have no reason to believe that either the Registration Statement, any Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and (viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and Prospectus. (2) The opinion, dated such date, of Stikeman Elliott LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus. (3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus. (b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des Finances, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus. (c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York. (d) Québec shall have furnished to the Agents, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language. (e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus or the Prospectus, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Agents, and any Terms Agreement may be terminated by the relevant Agent, by notice to Québec at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Sources: Distribution Agreement (Quebec)
Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Québec herein, to the accuracy of the statements of authorized representatives of Québec made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) At Closing Time, the Agents, and, in the case of the opinions referred to in Sections 5(a)(2) and 5(a)(3), at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received:
(1) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Québec or other counsel satisfactory to the Agents, in form and substance satisfactory to the Agents and the Agents’ counsel, to the effect that:
(i) The Notes have been duly authorized; and, under the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes became enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec court:
1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec,
2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations,
3. a decision on the same matter either (i) is pending before or has been rendered by a Québec court or (ii) has been rendered by a foreign tribunal and is recognizable in Québec, ,
4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce taxation obligations resulting from the taxation laws of QuébecQuébec law, or
5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party;
(ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec;
(iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto;
(iv) All necessary actions have action has been duly taken by or on behalf of Québec, and all necessary authorizations and approvals under the laws of Québec have been duly obtained, for the authorization, execution and delivery by Québec of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Calculation Agency Agreement, any Terms Agreement and the Notes and for the issuance and sale of the Notes pursuant to this Agreement, any Terms Agreement and the Fiscal Agency Agreement, and there are no laws of Canada applicable to any such authorization, execution, delivery, issuance, or sale, and no authorizations or approvals under the laws of Canada are necessary therefor;
(v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement and the Notes, Notes subject to the following qualifications:
1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and
2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment;
(vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance and sale of the Notes on the terms set forth herein and in the Terms Agreement, are exact translations and are not susceptible to any materially different interpretation with respect to any material matter therein;
(vii) There are no Canadian non-resident withholding taxes payable under the laws of Canada or of Québec in respect of any Notes or premium, if any, or interest thereon unless all or any part of the interest or of any amount deemed by the Income Tax Act (Canada) (“Canadian Tax Act”) to be interest paid or payable on the Notes is contingent or dependent upon the use of or production from property in Canada or is computed by reference to revenue, profit, cash flow, commodity price or any other similar criterion or by reference to dividends paid or payable to shareholders of any class of shares of a corporation. If any interest paid or payable on a Note, or any amount deemed by the Canadian Tax Act to be interest thereon, is to be calculated by reference to a criterion referred to above, such interest or amount, as the case may be, may be subject to Canadian non-resident withholding tax, subject to the following: no such withholding tax would apply if the Notes are “prescribed obligations” for these purposes. The regulations under the Canadian Tax Act provide that a prescribed obligation is a debt obligation the terms or conditions of which provide for an adjustment to the amount payable in respect of the obligation that is determined by reference to a change in the purchasing power of money and on which no amount payable, other than such an adjustment, is dependent or contingent upon or computed by reference to any of the criteria referred to above. There are no other taxes on income or capital gains payable under the laws of Canada or of Québec in respect of any Notes or premium, if any, or interest thereon by an owner who, at all relevant times, for purposes of the Canadian Tax Act and any applicable tax convention, is not, and is not deemed to be, a resident of Canada and does not use or hold, and is not deemed to use or hold, any Notes in or in the course of carrying on a business in Canada and is not an insurer carrying on an insurance business in Canada and elsewhere and is not an authorized foreign bank carrying on a bank business in Canada within the meaning of the Canadian Tax Act. There are no estate taxes or succession duties imposed by Canada or Québec in respect of any Notes or premium, if any, or interest thereon; and
(viii) Such counsel have no reason to believe that either the Registration Statement, any Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; their opinion with respect to Canadian taxes under the captions “Description of the Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and Prospectus.
(2) The opinion, dated such date, of Stikeman Elliott ▇▇▇▇▇▇ ▇▇▇▇ OR LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus.
(b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des Finances, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus.
(c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York.
(d) Québec shall have furnished to the Agents, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language.
(e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus or the Prospectus, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Agents, and any Terms Agreement may be terminated by the relevant Agent, by notice to Québec at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Sources: Distribution Agreement (Quebec)
Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Québec herein, to the accuracy of the statements of authorized representatives of Québec made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) At Closing Time, the Agents, and, in the case of the opinions referred to in Sections 5(a)(2) and 5(a)(3), at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received:
(1) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Québec or other counsel satisfactory to the Agents, in form and substance satisfactory to the Agents and the Agents’ counsel, to the effect that:
(i) The Notes have been duly authorized; and, under the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes became enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec court:
1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec,
2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations,
3. a decision on the same matter either (i) is pending before or has been rendered by a Québec court or (ii) has been rendered by a foreign tribunal and is recognizable in Québec, ,
4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce taxation obligations resulting from the taxation laws of QuébecQuébec law, or
5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party;
(ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec;
(iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto;
(iv) All necessary actions have action has been duly taken by or on behalf of Québec, and all necessary authorizations and approvals under the laws of Québec have been duly obtained, for the authorization, execution and delivery by Québec of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Calculation Agency Agreement, any Terms Agreement and the Notes and for the issuance and sale of the Notes pursuant to this Agreement, any Terms Agreement and the Fiscal Agency Agreement, and there are no laws of Canada applicable to any such authorization, execution, delivery, issuance, or sale, and no authorizations or approvals under the laws of Canada are necessary therefor;
(v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement and the Notes, Notes subject to the following qualifications:
1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and
2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment;
(vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance and sale of the Notes on the terms set forth herein and in the Terms Agreement, are exact translations and are not susceptible to any materially different interpretation with respect to any material matter therein;
(vii) There are no Canadian non-resident withholding taxes payable under the laws of Canada or of Québec in respect of any Notes or premium, if any, or interest thereon unless all or any part of the interest or of any amount deemed by the Income Tax Act (Canada) (“Canadian Tax Act”) to be interest paid or payable on the Notes is contingent or dependent on the use of or production from property in Canada or is computed by reference to revenue, profit, cash flow, commodity price or any other similar criterion or by reference to dividends paid or payable to shareholders of any class of shares of a corporation. If any interest paid or payable on a Note, or any amount deemed by the Canadian Tax Act to be interest thereon, is to be calculated by reference to a criterion referred to above, such interest or amount, as the case may be, may be subject to Canadian non-resident withholding tax, subject to the following: no such withholding tax would apply if the Notes are “prescribed obligations” for these purposes. The regulations under the Canadian Tax Act provide that a prescribed obligation is a debt obligation the terms or conditions of which provide for an adjustment to the amount payable in respect of the obligation that is determined by reference to a change in the purchasing power of money and on which no amount payable, other than such an adjustment, is dependent or contingent on or computed by reference to any of the criteria referred to above. There are no other taxes on income or capital gains payable under the laws of Canada or of Québec in respect of any Notes or premium, if any, or interest thereon by an owner who, at all relevant times, for purposes of the Canadian Tax Act and any applicable tax convention, is not, and is not deemed to be, a resident of Canada and does not use or hold, and is not deemed to use or hold, any Notes in or in the course of carrying on a business in Canada, is not an insurer carrying on an insurance business in Canada and elsewhere, is not a registered non-resident insurer within the meaning of the Canadian Tax Act and is not an authorized foreign bank carrying on a bank business in Canada within the meaning of the Canadian Tax Act. There are no estate taxes or succession duties imposed by Canada or Québec in respect of any Notes or premium, if any, or interest thereon; and
(viii) Such counsel have no reason to believe that either the Registration Statement, any Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; their opinion with respect to Canadian taxes under the captions “Description of the Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and Prospectus.
(2) The opinion, dated such date, of Stikeman Elliott ▇▇▇▇▇▇ ▇▇▇▇ Canada LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus.
(b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des FinancesFinances et de l’Économie, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus.
(c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York.
(d) Québec shall have furnished to the Agents, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language.
(e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus or the Prospectus, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Agents, and any Terms Agreement may be terminated by the relevant Agent, by notice to Québec at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Sources: Distribution Agreement (Quebec)
Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Québec herein, to the accuracy of the statements of authorized representatives of Québec made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) At Closing Time, the Agents, and, in the case of the opinions referred to in Sections 5(a)(2) and 5(a)(3), at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received:
(1) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Québec or other counsel satisfactory to the Agents, in form and substance satisfactory to the Agents and the Agents’ counsel, to the effect that:
(i) The Notes have been duly authorized; and, under the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec court:
1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec,
2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations,
3. a decision on the same matter either (i) is pending before or has been rendered by a Québec court or (ii) has been rendered by a foreign tribunal and is recognizable in Québec, 4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce obligations resulting from the taxation laws of Québec, or
5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party;
(ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec;
(iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto;
(iv) All necessary actions have been duly taken by or on behalf of Québec, and all necessary authorizations and approvals under the laws of Québec have been duly obtained, for the authorization, execution and delivery by Québec of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Calculation Agency Agreement, any Terms Agreement and the Notes and for the issuance and sale of the Notes pursuant to this Agreement, any Terms Agreement and the Fiscal Agency Agreement, and there are no laws of Canada applicable to any such authorization, execution, delivery, issuance, or sale, and no authorizations or approvals under the laws of Canada are necessary therefor;
(v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement and the Notes, subject to the following qualifications:
1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and
2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment;
(vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance and sale of the Notes on the terms set forth herein and in the Terms Agreement, are exact translations and are not susceptible to any materially different interpretation with respect to any material matter therein;
(vii) Such counsel have no reason to believe that either the Registration Statement, any Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and Prospectus.
(2) The opinion, dated such date, of Stikeman Elliott Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus.
(b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des Finances, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus.
(c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York.
(d) Québec shall have furnished to the Agents, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language.
(e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus or the Prospectus, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Agents, and any Terms Agreement may be terminated by the relevant Agent, by notice to Québec at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Sources: Distribution Agreement (Quebec)
Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the Province, the obligations of any purchasers of the Notes sold through the Agents as agents, and any obligation of any Agent to purchase Notes pursuant to any a Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of Québec herein, the Province herein and to the accuracy of the statements of authorized representatives of Québec the Province made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec the Province of all its covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) At Closing Time, No stop order suspending the Agents, and, in the case effectiveness of the opinions referred Registration Statement, as amended from time to in Sections 5(a)(2) and 5(a)(3)time, at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received:been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus and any Pricing Supplement shall have been timely filed with the SEC pursuant to Rule 424; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the U.S. Securities Act, shall have been filed with the SEC under the U.S. Securities Act.
(1b) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Québec or other counsel satisfactory Province shall have furnished to the Agents, in form and substance satisfactory on or prior to the Agents Closing Date, a written opinion dated the Closing Date of the Deputy Attorney General, Assistant Deputy Attorney General or Acting Assistant Deputy Attorney General of the Province or any solicitor who is an employee of the Crown and seconded to the Agents’ counselLegal Services Branch, Ministry of Finance and Ministry of Revenue, addressed to the Minister of Finance of the Province to the effect that:
(i) The Notes have been duly authorized; and, under based on the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated assumptions and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec courttherein:
1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec,
2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations,
3. a decision on the same matter either (i) is pending before or this Agreement has been rendered by a Québec court or (ii) has been rendered by a foreign tribunal and is recognizable in Québec, 4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce obligations resulting from the taxation laws of Québec, or
5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party;
(ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec;
(iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec the Province in accordance with the Orders in Council laws of the Province of Ontario and Ministerial the Order or Orders of the Gouvernement du Québec Lieutenant Governor in Council applicable thereto, and constitutes a legal, valid and binding agreement of the Province, enforceable in accordance with its terms;
(ii) the Fiscal Agency Agreement has been duly authorized, executed and delivered by the Province in accordance with the laws of the Province of Ontario and the Order or Orders of the Lieutenant Governor in Council applicable thereto, and, assuming due execution and delivery by the Fiscal Agent, constitutes a legal, valid and binding agreement of the Province, enforceable in accordance with its terms;
(iii) the Interest Calculation Agency Agreement has been duly authorized, executed and delivered by the Province in accordance with the laws of the Province of Ontario and the Order or Orders of the Lieutenant Governor in Council applicable thereto, and, assuming due execution and delivery by The Bank of New York Mellon, as calculation agent, constitutes a legal, valid and binding agreement of the Province, enforceable in accordance with its terms;
(iv) All necessary actions have been duly taken by or the Notes, as provided for in this Agreement, upon due execution on behalf of Québec, and all necessary authorizations and approvals under the Province in accordance with the laws of Québec have been the Province of Ontario and the applicable Order or Orders of the Lieutenant Governor in Council, upon due authentication in accordance with the provisions of the Fiscal Agency Agreement and delivery thereof and payment therefor in accordance with the provisions of this Agreement, will be duly obtainedauthorized and will constitute legal, for valid and binding obligations of the Province, enforceable in accordance with their terms, provided that at the time of any such issue and sale, the aggregate principal amount of Notes issued (including such Notes being issued) as determined under the Financial Administration Act (Ontario), will not exceed the Authorized Amount;
(v) the statements in the Prospectus under the headings “Description of Debt Securities and Warrants — Canadian Income Tax Considerations” and “Canadian Tax Considerations” are accurate in all material respects subject to the qualifications therein stated;
(vi) the payment of principal of and interest on the Notes will be a charge on and payable out of the Consolidated Revenue Fund of the Province of Ontario (as defined in the Financial Administration Act (Ontario));
(vii) no authorization, execution consent, waiver or approval of, or filing, registration, qualification or recording with, any governmental authority of the Province of Ontario or of Canada is required in connection with the execution, delivery and delivery performance by Québec the Province of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Interest Calculation Agency Agreement, any Terms Agreement and or the Notes and for the issuance issue and sale of the Notes pursuant to by the Province in the manner contemplated in this Agreement, any Terms Agreement and the Fiscal Agency AgreementProspectus, except for the Order or Orders of the Lieutenant Governor in Council applicable thereto, and there are an approval under section 28 of the Financial Administration Act (Ontario), which have been obtained;
(viii) no stamp or other similar duty or levy is payable under the laws of the Province of Ontario or the federal laws of Canada applicable to any such authorization, in the Province of Ontario in connection with the execution, delivery, issuance, or sale, delivery and no authorizations or approvals under performance by the laws Province of Canada are necessary therefor;
(v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement, the Interest Calculation Agency Agreement and or in connection with the Notes, subject to the following qualifications:
1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and
2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment;
(vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance issue and sale of the Notes by the Province in the manner contemplated in this Agreement, the Time of Sale Information and the Prospectus; and
(ix) Her Majesty the Queen in right of Ontario may be sued in the courts of the Province of Ontario with regard to any claims arising out of or relating to the obligations of the Province under the Notes. No law in the Province of Ontario requires the consent of any public official or authority for suit to be brought or judgment to be obtained against Her Majesty the Queen in right of Ontario arising out of or relating to the obligations of the Province under the Notes, though in certain circumstances prior notice and particulars of a claim must be given to Her Majesty the Queen in right of Ontario. An amount payable by Her Majesty the Queen in right of Ontario under an order of a court of the Province of Ontario that is final and not subject to appeal is payable out of the Consolidated Revenue Fund of the Province of Ontario pursuant to the Proceedings Against the Crown Act (Ontario).
(c) The Agents shall have received on the terms Closing Date from Shearman & Sterling LLP, United States counsel to the Province, favorable opinions dated the Closing Date to the effect that:
(i) the statements in the Prospectus under the caption “Description of the Notes” and “Plan of Distribution”, in each case, insofar as such statements constitute summaries of documents referred to therein, fairly summarize in all material respects the documents referred to therein; and
(ii) the statements in the Prospectus under the caption “Description of Debt Securities and Warrants — United States Federal Income Tax Considerations”, as supplemented by “Discussion of United States Tax Consequences”, insofar as such statements constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. Such counsel shall also state that although they have not verified, are not passing upon and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus (including the documents incorporated by reference therein), such counsel has, however, generally reviewed and discussed such statements with representatives of the Ontario Financing Authority and Ministry of Finance of the Province and, in the opinion of such counsel, (A) each of the Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, and any supplements or amendments thereto (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need not express any opinion) appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act and the applicable rules and regulations of the SEC thereunder; and (B) each of the documents incorporated by reference in the Prospectus (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need express no opinion), except to the extent that any statement therein is modified or superseded in the Prospectus, at the time it was filed with the SEC, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Exchange Act and the applicable rules and regulations of the SEC thereunder. Such counsel shall also state that, subject to the limitations set forth herein and in the Terms Agreementimmediately preceding paragraph, are exact translations in the course of such review and are not susceptible discussion, no facts have come to any materially different interpretation with respect to any material matter therein;
(vii) Such counsel have no reason such counsel’s attention which caused them to believe that either (A) the Registration StatementStatement (including the documents incorporated by reference therein, any Time other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of Sale Prospectus or the Prospectusdate of this Agreement, or any amendment or supplement thereto, contains any contained an untrue statement of a material fact or omits omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading; , (B) the descriptions in Prospectus as amended or supplemented, if applicable (including the Registration Statement and Prospectus of statutesdocuments incorporated by reference therein, legal and governmental proceedings and contracts other than the financial statements and other documents are accurate and fairly present the information required financial or statistical data contained therein or omitted therefrom, as to be shown; and which such counsel do has not know been requested to comment), as of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel Prospectus as amended or supplemented, if applicable, or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the financial statements or other financial data contained therein, in the Registration Statementlight of the circumstances under which they were made, any Time of Sale Prospectus and Prospectus.
not misleading, or (2C) The opinion, dated such date, of Stikeman Elliott LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statementif applicable, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus.
(b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des Finances, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus.
(c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York.
(d) Québec shall have furnished to the AgentsInformation, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language.
(e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus (other than the financial statements and other financial or the Prospectusstatistical data contained therein or omitted therefrom, at the time it was required as to be delivered which such counsel has not been requested to a purchaser of the Notescomment), contained an any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such timeunder which they were made, not misleading. In giving such opinions, such counsel may rely, without independent investigation, as to matters relating to the laws of the Province of Ontario or the federal laws of Canada applicable therein, on the opinion of the Deputy Attorney General, Assistant Deputy Attorney General or Acting Assistant Deputy Attorney General of the Province or any solicitor who is an employee of the Crown and seconded to the Legal Services Branch, Ministry of Finance and Ministry of Revenue, rendered pursuant to Section 5(b) hereof.
(d) The Agents shall have received on the Closing Date from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Agents, and Stikeman Elliott LLP, Canadian counsel for the Agents, favorable opinions dated the Closing Date as to the form and validity of the Notes and as to the proceedings and other related matters incident to the issuance and sale of the Notes on the Closing Date, and the Agents, shall have received on the Closing Date from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP a favorable opinion dated the Closing Date with respect to the Registration Statement and the Prospectus and other related matters as the Agents may reasonably require. In giving their opinion, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of Stikeman Elliott LLP as to matters of Canadian and Ontario law.
(e) The Province shall have furnished to the Agents, on the Closing Date a certificate of the Province, signed by the duly authorized officer of the Province (who may rely as to proceedings pending or contemplated upon the best of his knowledge), dated the Closing Date, to the effect that:
(i) the representations and warranties of the Province in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Province has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Province’s knowledge, threatened; and
(iii) there has been no material adverse change in the financial, economic or political conditions of the Province from those set forth in or contemplated by the Registration Statement and the Prospectus other than changes arising in the ordinary and normal course.
(f) On the Closing Date and on each Settlement Date with respect to any applicable Terms Agreement, the Agents shall have been furnished with such further reasonable information, certificates, opinions and documents as the Agents and the Province agree in such Terms Agreement. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the further condition that subsequent to the execution of such Terms Agreement and on or prior to the Settlement Date with respect to such Terms Agreement, there shall not have been any downgrading in the ratings of any of the Province’s long-term debt securities or any of the Notes issued under the Program by ▇▇▇▇▇’▇ Investors Service Inc. or Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If any condition of the conditions specified in this Section 5 shall not have been fulfilledfulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Agents, this Agreement and all obligations of the Agents hereunder may be terminated cancelled at, or at any time prior to, the Closing Date by the Agents, Agents and any Terms Agreement and this Agreement and all obligations of the Agents thereunder and hereunder may be terminated by the relevant Agentcancelled at, by notice to Québec or at any time at or prior to, the applicable Settlement Date by the Agents party thereto. Notice of such cancellation shall be given to the Closing Time Province in writing or applicable Settlement Dateby telephone or facsimile transmission, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth either case confirmed in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectwriting.
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Québec herein, to the accuracy of the statements of authorized representatives of Québec made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) At Closing Time, the Agents, and, in the case of the opinions referred to in Sections 5(a)(2) and 5(a)(3), at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received:
(1) The opinion, dated as of such date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, L.L.P., counsel to Québec or other counsel satisfactory to the Agents, in form and substance satisfactory to the Agents and the Agents’ counsel, to the effect that:
(i) The Notes have been duly authorized; and, under the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes became enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec court:
1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec,
2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations,
3. a decision on the same matter either (i) is pending before or has been rendered by a Québec court or or
(ii) has been rendered by a foreign tribunal and is recognizable in Québec, 4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce taxation obligations resulting from the taxation laws of QuébecQuébec law, or
5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party;
(ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec;
(iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto;
(iv) All necessary actions have been duly taken by or on behalf of Québec, and all necessary authorizations and approvals under the laws of Québec have been duly obtained, for the authorization, execution and delivery by Québec of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Calculation Agency Agreement, any Terms Agreement and the Notes and for the issuance and sale of the Notes pursuant to this Agreement, any Terms Agreement and the Fiscal Agency Agreement, and there are no laws of Canada applicable to any such authorization, execution, delivery, issuance, or sale, and no authorizations or approvals under the laws of Canada are necessary therefor;
(v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement and the Notes, subject to the following qualifications:
1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and
2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment;
(vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance and sale of the Notes on the terms set forth herein and in the Terms Agreement, are exact translations and are not susceptible to any materially different interpretation with respect to any material matter therein;
(vii) Such counsel have no reason to believe that either the Registration Statement, any Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and Prospectus.
(2) The opinion, dated such date, of Stikeman Elliott LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus.
(b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des Finances, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus.
(c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York.
(d) Québec shall have furnished to the Agents, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language.
(e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus or the Prospectus, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Agents, and any Terms Agreement may be terminated by the relevant Agent, by notice to Québec at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Sources: Distribution Agreement (Quebec)
Conditions to the Obligations of the Agents. The obligations of the Agents to solicit offers to purchase the Notes as agents of Québec and the obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Québec herein, to the accuracy of the statements of authorized representatives of Québec made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by Québec of all covenants and agreements herein contained on its part to be performed and observed and to the following additional conditions precedent:
(a) At Closing Time, the Agents, and, in the case of the opinions referred to in Sections 5(a)(2) and 5(a)(3), at each Settlement Date with respect to any applicable Terms Agreement, if called for by such Terms Agreement, the relevant Agent shall have received:
(1) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to Québec or other counsel satisfactory to the Agents, in form and substance satisfactory to the Agents and the Agents’ counsel, to the effect that:
(i) The Notes have been duly authorized; and, under the applicable laws of Québec in effect at the Closing Time or Settlement Date, as the case may be, the Notes, when executed, issued, authenticated and delivered outside Québec and in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto in effect on such date, will have been duly executed, issued and delivered in accordance with the laws of Québec in effect on such date, and such Notes and this Agreement and the Fiscal Agency Agreement, and the covenants therein contained will constitute valid and legally binding, direct and unconditional general obligations of Québec, for the payment and performance of which the full faith and credit of Québec have been pledged; and such Notes will be enforceable against Québec in accordance with their terms, subject to the qualifications set forth in Section 5(a)(1)(v), and subject furthermore to the provisions of Book Ten, Title Four of the Civil Code of Québec whereby, in recognizing and enforcing a decision rendered by a court outside Québec for a sum of money expressed in foreign currency, a Québec court will convert that sum of money into Canadian currency at the rate of exchange prevailing on the day such decision becomes became enforceable at the place where it was rendered and whereby, in the cases listed below, a decision rendered by a court outside Québec would not be recognized and, where applicable, declared enforceable by a Québec court:
1. the court rendering the decision had no jurisdiction under the provisions of the Civil Code of Québec,
2. the decision is not final or enforceable at the place where it was rendered, is in contravention of fundamental principles of procedure, or is manifestly inconsistent with public order as understood in international relations,
3. a decision on the same matter either (i) is pending before or has been rendered by a Québec court or (ii) has been rendered by a foreign tribunal and is recognizable in Québec, 4. the decision enforces obligations resulting from taxation laws of a foreign country which does not itself recognize and enforce taxation obligations resulting from the taxation laws of QuébecQuébec law, or
5. the decision is rendered by default and the act of procedure initiating the proceedings was not duly served on the defaulting party;
(ii) The Notes will rank equally among themselves and with the other debt securities issued by Québec and outstanding on such Representation Date or thereafter and all funds required to make payments in respect of the Notes will be taken out of the Consolidated Revenue Fund of Québec;
(iii) This Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Exchange Rate Agency Agreement”), the Calculation Agency Agreement, dated as of December 11, 2003, between Québec and Citibank, N.A. (the “Calculation Agency Agreement”) and, if the opinion is being given pursuant to Section 6(c) hereof on account of Québec having entered into a Terms Agreement, the applicable Terms Agreement, have been duly authorized, executed and delivered by Québec in accordance with the Orders in Council and Ministerial Orders of the Gouvernement du Québec applicable thereto;
(iv) All necessary actions have action has been duly taken by or on behalf of Québec, and all necessary authorizations and approvals under the laws of Québec have been duly obtained, for the authorization, execution and delivery by Québec of this Agreement, the Fiscal Agency Agreement, the Exchange Rate Agency Agreement, the Calculation Agency Agreement, any Terms Agreement and the Notes and for the issuance and sale of the Notes pursuant to this Agreement, any Terms Agreement and the Fiscal Agency Agreement, and there are no laws of Canada applicable to any such authorization, execution, delivery, issuance, or sale, and no authorizations or approvals under the laws of Canada are necessary therefor;
(v) Québec does not enjoy, under the laws of Québec and the laws of Canada applicable therein, a right of immunity from suit, on the ground of sovereignty or otherwise, in respect of its obligations under this Agreement, the Fiscal Agency Agreement and the Notes, Notes subject to the following qualifications:
1. the provisions of the Code of Civil Procedure of Québec which bar extraordinary recourses (quo warranto, mandamus and evocation) and provisional remedies (injunction, seizure of assets before judgment and sequestration) against the Gouvernement du Québec, and
2. the general immunity of the State from compensation, set-off, acquisitive prescription, attachment and execution on a judgment;
(vi) The English translations of the Orders in Council and Ministerial Orders of the Gouvernement du Québec, authorizing the issuance and sale of the Notes on the terms set forth herein and in the Terms Agreement, are exact translations and are not susceptible to any materially different interpretation with respect to any material matter therein;
(vii) There are no Canadian non-resident withholding taxes payable under the laws of Canada or of Québec in respect of any Notes or premium, if any, or interest thereon unless all or any part of the interest or of any amount deemed by the Income Tax Act (Canada) (“Canadian Tax Act”) to be interest paid or payable on the Notes is contingent or dependent upon the use of or production from property in Canada or is computed by reference to revenue, profit, cash flow, commodity price or any other similar criterion or by reference to dividends paid or payable to shareholders of any class of shares of a corporation. If any interest paid or payable on a Note, or any amount deemed by the Canadian Tax Act to be interest thereon, is to be calculated by reference to a criterion referred to above, such interest or amount, as the case may be, may be subject to Canadian non-resident withholding tax, subject to the following: no such withholding tax would apply if the Notes are “prescribed obligations” for these purposes. The regulations under the Canadian Tax Act provide that a prescribed obligation is a debt obligation the terms or conditions of which provide for an adjustment to the amount payable in respect of the obligation that is determined by reference to a change in the purchasing power of money and on which no amount payable, other than such an adjustment, is dependent or contingent upon or computed by reference to any of the criteria referred to above. There are no other taxes on income or capital gains payable under the laws of Canada or of Québec in respect of any Notes or premium, if any, or interest thereon by an owner who, at all relevant times, for purposes of the Canadian Tax Act and any applicable tax convention, is not, and is not deemed to be, a resident of Canada and does not use or hold, and is not deemed to use or hold, any Notes in or in the course of carrying on a business in Canada and is not an insurer carrying on an insurance business in Canada and elsewhere and is not an authorized foreign bank carrying on a bank business in Canada within the meaning of the Canadian Tax Act. There are no estate taxes or succession duties imposed by Canada or Québec in respect of any Notes or premium, if any, or interest thereon; and
(viii) Such counsel have no reason to believe that either the Registration Statement, any Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; their opinion with respect to Canadian taxes under the captions “Description of the Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus which are not described as required, nor or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required; and
(viii) Their opinion with respect to Canadian taxes under the captions “Description of the Securities—Debt Securities—Canadian Taxes on Debt Securities” and “Canadian Tax Considerations” in the Prospectus is accurately described therein. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure, and upon a certificate of Québec as to the securities of Québec outstanding on the date of such opinion; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and Prospectus.
(2) The opinion, dated such date, of Stikeman Elliott ▇▇▇▇▇▇ ▇▇▇▇ OR LLP, Canadian counsel to the Agents, with respect to the validity of any Notes, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a certificate of Québec as to the securities of Québec outstanding on such date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(3) The opinion, dated such date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agents, with respect to the validity of any Notes, the Registration Statement, the Prospectus, and other related matters as the Agents may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in Sections 5(a)(1) and 5(a)(2) as to matters of Canadian and Québec law and procedure; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement, any Time of Sale Prospectus and the Prospectus.
(b) At the Closing Time, the Agents shall have received a certificate of any authorized official at the Ministère des Finances, dated such date, in which such official shall, to the best of his knowledge after reasonable investigation, state that the representations and warranties of Québec in this Agreement are true and correct as of the date thereof, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the financial condition of Québec, except as set forth or contemplated in the Prospectus.
(c) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, the purchase and sale of any Notes in accordance with the provisions hereof and of any Terms Agreement shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, Québec or the State of New York.
(d) Québec shall have furnished to the Agents, at the Closing Time, and to the relevant Agent, if so requested at each Settlement Date with respect to any applicable Terms Agreement, and to counsel for the Agents, at the Closing Time and at each Settlement Date, accurate English translations of all Orders in Council and Ministerial Orders of the Gouvernement du Québec, relating to the authorization, issuance and sale of any Notes, and of all documents and certificates delivered pursuant to the foregoing paragraphs of this Section 5, which pursuant to the laws of Québec were adopted, passed, enacted or drawn in the French language.
(e) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement, counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by Québec in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Agents and the Agents’ counsel. The obligations of any Agent to purchase Notes pursuant to any Terms Agreement will be subject to the following further conditions: (a) the rating assigned by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) to any debt securities of Québec as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) have occurred and (b) there shall not have come to such Agent’s attention any facts that would cause such Agent to believe that the Time of Sale Prospectus or the Prospectus, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, this Agreement may be terminated by the Agents, and any Terms Agreement may be terminated by the relevant Agent, by notice to Québec at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(c) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Sources: Distribution Agreement (Quebec)