Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each of them is relying upon such representations and warranties, that: 6.1.1 each of the REIT Entities has been duly established and is validly existing under the laws of its jurisdiction of incorporation or formation, as the case may be, and has, through its trustees, directors, officers or general partner, as the case may be, all requisite power and capacity under its constating documents to carry on its business as now conducted and as presently proposed to be conducted (including in respect of the Acquisition Properties, except that new entities may be created to hold the Acquisition Properties) and to own, lease and operate its properties and assets, including the Assets, and, in the case of the REIT, to execute, deliver and carry out its obligations under the Material Contracts and in respect of the Proposed Acquisition; 6.1.2 each of the REIT Entities has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules, environmental legislation, regulations, licences and permits and is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on business to enable its business as now conducted to be carried on and to enable the Assets and the Acquisition Properties (other than any new entities the REIT organizes for purposes of holding any of the Acquisition Properties and any new licenses or permits or registrations or qualifications that may be required by such new entities) to be owned or to be leased and to be operated, except where the failure to be so licensed, registered or qualified would not have a material adverse effect on the REIT, the Assets or the Acquisition Properties, and all such licences, registrations, qualifications and permits are valid and existing and in good standing in all material respects and none of them contains any term, provision, condition or limitation which has a material adverse effect on the Assets or the Acquisition Properties. The REIT is not aware of any legislation, regulation, by law or other lawful requirement currently in force or proposed to be brought into force by any governmental authority with which the REIT will be unable to comply and/or which would materially adversely affect the Assets or the Acquisition Properties, or the REIT’s operations or financial condition; 6.1.3 the REIT has conducted and is conducting its business in compliance in all material respects with the terms and provisions of the Declaration of Trust; 6.1.4 except as disclosed to the Underwriters or as set forth in the Prospectus and any Amendments, as of the Closing Time the REIT will be, directly or indirectly, the beneficial owner of its Assets or its interests therein, and any and all material agreements pursuant to which the REIT will hold any such interests will be, at the Closing Time valid and subsisting agreements in full force and effect, enforceable by the REIT in accordance with their respective terms; 6.1.5 no REIT Entity is in default of any of the provisions of any agreements referred to in paragraph 6.1.4, which default may be material to the REIT’s ability to maintain beneficial ownership of its Assets or its interests therein or which may have a material adverse effect upon any such Assets or upon the operation of the business of the REIT as now conducted or proposed to be conducted in respect of such Assets, nor has any such default been alleged and such Assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated; all leases pursuant to which the REIT derives or will derive its interests in such Assets are in good standing and there has been no material default under any such leases (except for minor and temporary arrears and other similar temporary defaults which occur in the ordinary course of business) and all realty, property or other taxes required to be paid with respect to such Assets to the date hereof have been paid; 6.1.6 none of the REIT Entities is in default or in breach of, and the execution and delivery of any Material Contract to which it is a party and all documents executed and/or delivered, or to be executed and/or delivered pursuant hereto or thereto (collectively with the Material Contracts, the “Transaction Documents”), the performance and compliance with the terms of the Transaction Documents, and the issue and sale of the Offered Securities will not result in any breach of, or be in conflict with or constitute a default under, any term or provision of the Declaration of Trust or the Material Contracts, any resolution of the trustees or unitholders of the REIT or any mortgage, note, indenture, contract, agreement, written or oral, instrument, lease or other document to which any of the REIT Entities is or will at the Closing Time be a party or by which any of the REIT Entities or their property is or will be bound or any judgment, decree, order, statute, rule or regulation applicable to any of the REIT Entities, except in each case, any breach or default which could not reasonably be expected to have a material adverse effect on the REIT; 6.1.7 the REIT, through its trustees in their capacity as such, has all requisite power and authority: (i) to enter into the Material Contracts; (ii) to issue and deliver the Offered Securities in accordance with the provisions of this Agreement, the Subscription Receipt Agreement and the Indenture, as applicable; and (iii) to carry out all the terms and provisions of the Material Contracts; 6.1.8 the representations and warranties of the REIT Entities contained in the Transaction Documents to which any REIT Entity is a party shall be true and correct in all material respects: 6.1.8.1 as of the date hereof, in the case of Transaction Documents executed on or before the date hereof (except to the extent such representations and warranties were given only as of a specified date prior to the date hereof); or 6.1.8.2 as of the date of execution, in the case of Transaction Documents executed after the date hereof; provided that in the case of subparagraph 6.1.8.2, all such Transaction Documents (other than those Transaction Documents to be executed and/or delivered pursuant to the Acquisition Agreements on the Acquisition Closing Date) shall be executed in a form agreed to between the REIT and the Underwriters and their counsel, each acting reasonably, on or before the Closing Date; 6.1.9 this Agreement and the other Transaction Documents to which any of the REIT Entities is a party, have been or, as the case may be, will at the Closing Time be, duly authorized, executed and delivered by the relevant REIT Entities and constitute or, as the case may be, will constitute when so executed and delivered legal, valid and binding obligations of the relevant REIT Entities, enforceable in accordance with their respective terms, except where enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity where equitable remedies are sought and except as rights to indemnity and contribution may be limited by applicable laws; 6.1.10 the REIT is authorized to issue an unlimited number of Units, of which, as of the date hereof, 49,564,324 Units are issued and outstanding as fully-paid Units or as partially paid Units issued under the LTIP; 6.1.11 as of the date hereof, 9,110,269 Class B limited partnership units of Retrocom Limited Partnership exchangeable on a one-for-one basis for Units are issued and outstanding as fully paid units of Retrocom Limited Partnership; 6.1.12 the issued and outstanding Units are listed on the Stock Exchange, and the REIT has applied to the Stock Exchange to have the Debentures, the Subscription Receipts and the Underlying Securities listed on the Stock Exchange; 6.1.13 none of the REIT Entities has securities outstanding which are convertible into or exchangeable or exercisable for Units and there are no outstanding options or rights to subscribe for any of the unissued Units except as disclosed in the Prospectus and any Amendments, or except as have been disclosed in writing to the Underwriters; 6.1.14 the financial statements of the REIT contained or incorporated by reference in the Prospectus have been prepared in accordance with International Financial Reporting Standards applied on a basis consistent with prior periods (except as disclosed in such financial statements) (other than any financial statements relating to any “significant acquisition” (for the purposes of applicable Securities Laws and, for greater certainty, for the purposes of Part 8 of NI 51- 102), whether completed or probable, contained or incorporated by reference in the Preliminary Prospectus and the Prospectus), and present fairly in all material respects the financial position of the REIT as at their respective dates, and the financial statements relating to any “significant acquisition”, whether completed or probable, contained or incorporated by reference in the Preliminary Prospectus and the Prospectus have been prepared in accordance with International Financial Reporting Standards and present fairly in all material respects the consolidated financial position of the applicable properties or business comprising any “significant acquisition”, whether completed or probable, at their respective dates, and no such financial statements contain any misrepresentation; 6.1.15 there has not been any reportable event (within the meaning of NI 51- 102) with the REIT’s Auditors; 6.1.16 the REIT will apply the net proceeds from the issue and sale of the Offered Securities to be issued and sold by it hereunder substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus; 6.1.17 other than as disclosed in the Prospectus or any Amendment, neither the REIT nor its agents acting on its behalf, have approved or entered into any agreement in respect of: 6.1.17.1 the purchase of any property or the sale, transfer or other disposition of any property currently owned or to be owned, directly or indirectly, by the REIT, whether by asset sale, transfer of shares, or otherwise which would be material to the REIT; or 6.1.17.2 the sale of all or substantially all of the Assets; 6.1.18 other than as publicly disclosed by the REIT or except as disclosed to the Underwriters: 6.1.18.1 no distributions to holders of Units have been declared or paid by the REIT and no capital expenditures or commitments therefor have been made by the REIT; 6.1.18.2 the REIT has not incurred any material obligation or liability, direct, contingent or otherwise; and 6.1.18.3 no transactions of a nature material to the REIT have been entered into or approved by the REIT; 6.1.19 other than as may be required under the Securities Laws and the rules and by-laws of the Stock Exchange, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the creation, issue and sale of the Debentures and the Subscription Receipts and the issue of the Underlying Securities as contemplated by this Agreement; 6.1.20 there is no legal or governmental action, proceeding or investigation pending or, to the knowledge of the REIT, threatened, which would question the validity of the creation, issue or sale of the Debentures and the Subscription Receipts and the issue of the Underlying Securities or the validity of any action taken or to be taken by the REIT in connection with this Agreement or the Proposed Acquisition; 6.1.21 on or before the Closing Time, all actions required to be taken by or on behalf of the REIT, including the passing of all requisite resolutions of the trustees of the REIT shall have occurred so as to validly authorize the creation, issue and sale of the Debentures and the Subscription Receipts and the issue of the Underlying Securities; 6.1.22 all offerings of Units and debentures convertible into Units made by the REIT from October 31, 2006 to December 31, 2010 were within the safe harbour limits set out in the “normal growth guidelines” issued by the Department of Finance (Canada) on December 15, 2006 as amended on December 4, 2008, in connection with the SIFT Rules; 6.1.23 following the internal reorganization of the REIT effective October 31, 2010, the REIT has continuously qualified for the REIT Exception under the SIFT Rules as currently enacted and the REIT expects to continue to qualify under the REIT Exception, as proposed to be amended, throughout 2013 and subsequent taxation years; 6.1.24 there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the REIT, threatened against or affecting the Assets or the REIT Entities, or, to the knowledge of the REIT, the Acquisition Properties at law or in equity or before or by any federal, provincial, municipal or other bureau, agency or instrumentality, domestic or foreign, which may in any way materially and adversely affect the Assets taken as a whole, except as disclosed to the Underwriters; 6.1.25 insurance coverage against such risks in such amounts as are reasonable for prudent owners of similar businesses is maintained by the REIT and the REIT Entities in respect of the Assets or is arranged by the trustees and the directors of the REIT and the REIT Entities, as the case may be, with responsible insurers and that coverage is, and will immediately following the Closing Date be, in full force and effect for the Properties; buildings constructed on the Properties were constructed in accordance with building permits properly issued therefor, if required, and in material compliance with all applicable building and zoning by-laws; and there are no material defects in such buildings; except as disclosed to the Underwriters or where it would not have a material adverse effect on the REIT, the REIT has received no notice of any outstanding work orders or deficiency notices relating to such buildings from or required by any police or fire department, sanitation, health authorities or from any other federal, provincial or municipal authority and there is no matter under discussion with any such departments or authorities relating to work orders; except as disclosed to the Underwriters or where it would not have a material adverse effect on the REIT, such buildings and all chattels required for the effective operation of such buildings are in good operating condition and are in a state of good repair and maintenance; 6.1.26 except as previously disclosed to the Underwriters: 6.1.26.1 all of the Properties and the buildings constructed and operations thereon, and, to the knowledge of the REIT, all of the Acquisition Properties and the buildings constructed and operations thereon, are in material compliance with all applicable federal, provincial and municipal environmental, health and safety laws, statutes, regulations by laws, permits and common law requirements; 6.1.26.2 none of such Properties, Acquisition Properties, buildings or operations is, to the knowledge of the REIT, subject to any judicial or administrative proceeding alleging the violation of any federal, provincial or municipal environmental, health or safety law, statute, regulation permit, by law or common law requirements or is subject to any investigation, by or on behalf of a REIT Entity, evaluating whether any action is needed to respond to the presence or a release of any Hazardous Material at, under, in, through or into the environment, except where it would not have a material adverse effect on the REIT; 6.1.26.3 no REIT Entity nor, to the best of the REIT’s knowledge, any tenant in any Property or Acquisition Property, has filed or received any notice required under any federal, provincial or municipal law indicating past or present treatment, storage or disposal of a Hazardous Material or reporting a spill or other release of a Hazardous Material into the environment involving any of the Properties or Acquisition Properties other than those which have been remedied; 6.1.26.4 none of the Properties (other than the Property located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇), and, to the kno
Appears in 1 contract
Sources: Underwriting Agreement
Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each of them is relying upon such representations and warranties, that:
6.1.1 each of the REIT Entities has been duly established and is validly existing under the laws of its jurisdiction of incorporation or formation, as the case may be, and has, through its trustees, directors, officers or general partner, as the case may be, all requisite power and capacity under its constating documents to carry on its business as now conducted and as presently proposed to be conducted (including in respect of the Acquisition Properties, except that new entities may be created to hold the Acquisition Properties) and to own, lease and operate its properties and assets, including the Assets, and, in the case of the REIT, to execute, deliver and carry out its obligations hereunder and under the Material Contracts and in respect of the Proposed AcquisitionIndenture;
6.1.2 each of the REIT Entities has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules, environmental legislation, regulations, licences and permits and is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on business to enable its business as now conducted to be carried on and to enable the Assets and the Acquisition Properties (other than any new entities the REIT organizes for purposes of holding any of the Acquisition Properties and any new licenses or permits or registrations or qualifications that may be required by such new entities) to be owned or to be leased and to be operated, except where the failure to be so licensed, registered or qualified would not have a material adverse effect on the REIT, the Assets REIT or the Acquisition PropertiesAssets, and all such licences, registrations, qualifications and permits are valid and existing and in good standing in all material respects and none of them contains any term, provision, condition or limitation which has a material adverse effect on the Assets or the Acquisition PropertiesAssets. The REIT is not aware of any legislation, regulation, by by-law or other lawful requirement currently in force or proposed to be brought into force by any governmental authority with which the REIT will be unable to comply and/or which would materially adversely affect the Assets or the Acquisition PropertiesAssets, or the REIT’s operations or financial condition;
6.1.3 the REIT has conducted and is conducting its business in compliance in all material respects with the terms and provisions of the Declaration of Trust;
6.1.4 except as disclosed to the Underwriters or as set forth in the Prospectus and any Amendments, as of the Closing Time the REIT will be, directly or indirectly, the beneficial owner of its Assets or its interests therein, and any and all material agreements pursuant to which the REIT will hold any such interests will be, at the Closing Time valid and subsisting agreements in full force and effect, enforceable by the REIT in accordance with their respective terms;
6.1.5 no REIT Entity is in default of any of the provisions of any agreements referred to in paragraph 6.1.4, which default may be material to the REIT’s ability to maintain beneficial ownership of its Assets or its interests therein or which may have a material adverse effect upon any such Assets or upon the operation of the business of the REIT as now conducted or proposed to be conducted in respect of such Assets, nor has any such default been alleged and such Assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situatedsituate; all leases pursuant to which the REIT derives or will derive its interests in such Assets are in good standing and there has been no material default under any such leases (except for minor and temporary arrears and other similar temporary defaults which occur in the ordinary course of business) and all realty, property realty or other property taxes required to be paid with respect to such Assets to the date hereof have been paid;
6.1.6 none of the REIT Entities is in default or in breach of, and the execution and delivery of any Material Contract to which it any REIT Entity is a party and all documents executed and/or delivered, or to be executed and/or delivered pursuant hereto or thereto (collectively with the Material Contractscollectively, the “Transaction Documents”), the performance and compliance with the terms of this Agreement, the Indenture and the other Transaction Documents, and the issue and sale of the Offered Securities Debentures and the issue of the Debenture Units will not result in any breach of, or be in conflict with or constitute a default under, any term or provision of the Declaration of Trust or the Material ContractsIndenture, any resolution of the trustees or unitholders of the REIT or any mortgage, note, indenture, contract, agreement, written or oral, instrument, lease or other document to which any of the REIT Entities is or will at the Closing Time be a party or by which any of the REIT Entities or their property is or will be bound or any judgment, decree, order, statute, rule or regulation applicable to any of the REIT Entities, except in each case, any breach or default which could not reasonably be expected to have a material adverse effect on the REIT;
6.1.7 the REIT, through its trustees in their capacity as such, has all requisite power and authority: (i) to enter into this Agreement and the Material ContractsIndenture; (ii) to issue and deliver the Offered Securities Debentures and the Debenture Units in accordance with the provisions of this Agreement, the Subscription Receipt Agreement and the Indenture, as applicable; and (iii) to carry out all the terms and provisions of this Agreement and the Material ContractsIndenture;
6.1.8 the representations and warranties of the REIT Entities contained in the Transaction Documents to which any REIT Entity is a party shall be true and correct in all material respects:
6.1.8.1 as of the date hereof, in the case of Transaction Documents executed on or before the date hereof (except to the extent such representations and warranties were given only as of a specified date prior to the date hereof); or
6.1.8.2 as of the date of execution, in the case of Transaction Documents executed after the date hereof; provided that in the case of subparagraph 6.1.8.2, all such Transaction Documents (other than those Transaction Documents to be executed and/or delivered pursuant to the Acquisition Agreements on the Acquisition Closing Date) shall be executed in a form agreed to between the REIT and the Underwriters and their counsel, each acting reasonably, on or before the Closing Date;
6.1.9 this Agreement Agreement, the Indenture and the other Transaction Documents to which any of the REIT Entities is a party, have been or, as the case may be, will at the Closing Time be, duly authorized, executed and delivered by the relevant REIT Entities and constitute or, as the case may be, will constitute when so executed and delivered legal, valid and binding obligations of the relevant REIT Entities, enforceable in accordance with their respective terms, except where enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity where equitable remedies are sought and except as rights to indemnity and contribution may be limited by applicable laws;
6.1.10 the REIT is authorized to issue an unlimited number of Unitsunits, of which, as of the date hereof, 49,564,324 Units 35,149,251 units are issued and outstanding as fully-paid Units units of the REIT or as partially paid Units units of the REIT issued under the LTIP;
6.1.11 as of the date hereof, 9,110,269 Class B limited partnership units of Retrocom Limited Partnership exchangeable on a one-for-one basis for Units units of the REIT are issued and outstanding as fully paid units of Retrocom Limited Partnership;
6.1.12 the issued and outstanding Units units of the REIT are listed on the Stock Exchange, and the REIT has applied to the Stock Exchange to have the Debentures, the Subscription Receipts Debentures and the Underlying Securities Debenture Units listed on the Stock Exchange;
6.1.13 none of the REIT Entities has securities outstanding which are convertible into or exchangeable or exercisable for Units units of the REIT and there are no outstanding options or rights to subscribe for any of the unissued Units units of the REIT except as disclosed in the Prospectus and any Amendments, or except as have been disclosed in writing to the Underwriters;
6.1.14 the financial statements of the REIT contained or incorporated by reference included in the Prospectus have been prepared in accordance with International Financial Reporting Standards Canadian generally accepted accounting principles applied on a basis consistent with prior periods (except as disclosed in such financial statements) (other than any financial statements relating to any “significant acquisition” (for the purposes of applicable Securities Laws andyear ended December 31, for greater certainty2010, and in accordance with International Financial Reporting Standards for the purposes of Part 8 of NI 51- 102)three-months ended March 31, whether completed or probable, contained or incorporated by reference in the Preliminary Prospectus and the Prospectus)2011, and present fairly in all material respects the financial position of the REIT as at their respective dates, dates and the financial statements relating to any “significant acquisition”, whether completed or probable, contained or incorporated by reference in the Preliminary Prospectus and the Prospectus have been prepared in accordance with International Financial Reporting Standards and present fairly in all material respects the consolidated financial position of the applicable properties or business comprising any “significant acquisition”, whether completed or probable, at their respective dates, and no such financial statements contain any no misrepresentation;
6.1.15 there has not been any reportable event (within the meaning of NI 51- 102) with the REIT’s Auditors;
6.1.16 the REIT will apply the net proceeds from the issue and sale of the Offered Securities Debentures to be issued and sold by it hereunder substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus;
6.1.17 other than as disclosed in the Prospectus or any Amendment, neither the REIT nor its agents acting on its behalf, have approved or entered into any agreement in respect of:
6.1.17.1 the purchase of any property or the sale, transfer or other disposition of any property currently owned or to be owned, directly or indirectly, by the REIT, whether by asset sale, transfer of shares, or otherwise which would be material to the REIT; or
6.1.17.2 the sale of all or substantially all of the Assets;
6.1.18 other than as publicly disclosed by the REIT or except as disclosed to the Underwriters:
6.1.18.1 no distributions to holders of Units units of the REIT have been declared or paid by the REIT and no capital expenditures or commitments therefor have been made by the REIT;
6.1.18.2 the REIT has not incurred any material obligation or liability, direct, contingent or otherwise; and
6.1.18.3 no transactions of a nature material to the REIT have been entered into or approved by the REIT;
6.1.19 other than as may be required under the Securities Laws and the rules and by-laws of the Stock Exchange, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the creation, issue and sale of the Debentures and the Subscription Receipts and or the issue of the Underlying Securities Debenture Units as contemplated by this AgreementAgreement and the Indenture;
6.1.20 there is no legal or governmental action, proceeding or investigation pending or, to the knowledge of the REIT, threatened, which would question the validity of the creation, issue issuance or sale of the Debentures and the Subscription Receipts and or the issue of the Underlying Securities Debenture Units or the validity of any action taken or to be taken by the REIT in connection with this Agreement or the Proposed AcquisitionIndenture;
6.1.21 on or before the Closing Time, all actions required to be taken by or on behalf of the REIT, including the passing of all requisite resolutions of the trustees of the REIT shall have occurred so as to validly authorize the creation, issue and sale of the Debentures and the Subscription Receipts and the issue of the Underlying SecuritiesDebenture Units on the terms set out in the Indenture;
6.1.22 all offerings of Units units and debentures convertible into Units units made by the REIT from October 31, 2006 to December 31, 2010 were within the safe harbour limits set out in the “normal growth guidelines” issued by the Department of Finance (Canada) on December 15, 2006 as amended on December 4, 2008, in connection with the SIFT Rules;
6.1.23 following the internal reorganization of the REIT effective October 31, 2010, the REIT has continuously qualified for the REIT Exception under the SIFT Rules as currently current enacted and the REIT expects to continue to qualify under the REIT Exception, as proposed to be amended, throughout 2013 2011 and subsequent taxation years;
6.1.24 there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the REIT, threatened against or affecting the Assets or the REIT Entities, or, to the knowledge of the REIT, the Acquisition Properties Entities at law or in equity or before or by any federal, provincial, municipal or other bureau, agency or instrumentality, domestic or foreign, which may in any way materially and adversely affect the Assets taken as a whole, except as disclosed to the Underwriters;
6.1.25 insurance coverage against such risks in such amounts as are reasonable for prudent owners of similar businesses is maintained by the REIT and the REIT Entities in respect of the Assets or is arranged by the trustees and the directors of the REIT and the REIT Entities, as the case may be, with responsible insurers and that coverage is, and will immediately following the Closing Date be, in full force and effect for the Properties; buildings constructed on the Properties were constructed in accordance with building permits properly issued therefor, if required, and in material compliance with all applicable building and zoning by-laws; and there are no material defects in such buildings; except as disclosed to the Underwriters or where it would not have a material adverse effect on the REIT, the REIT has received no notice of any outstanding work orders or deficiency notices relating to such buildings from or required by any police or fire department, sanitation, health authorities or from any other federal, provincial or municipal authority and there is no matter under discussion with any such departments or authorities relating to work orders; except as disclosed to the Underwriters or where it would not have a material adverse effect on the REIT, such buildings and all chattels required for the effective operation of such buildings are in good operating condition and are in a state of good repair and maintenance;
6.1.26 except as previously disclosed to the Underwriters:
6.1.26.1 all of the Properties and the buildings constructed and operations thereon, and, to the knowledge of the REIT, all of the Acquisition Properties and the buildings constructed and operations thereon, thereon are in material compliance with all applicable federal, provincial and municipal environmental, health and safety laws, statutes, regulations by by-laws, permits and common law requirements;
6.1.26.2 none of such Properties, Acquisition Properties, buildings or operations is, to the knowledge of the REIT, subject to any judicial or administrative proceeding alleging the violation of any federal, provincial or municipal environmental, health or safety law, statute, regulation permit, by by-law or common law requirements or is subject to any investigation, by or on behalf of a REIT Entity, evaluating whether any action is needed to respond to the presence or a release of any Hazardous Material at, under, in, through or into the environment, except where it would not have a material adverse effect on the REIT;
6.1.26.3 no REIT Entity nor, to the best of the REIT’s knowledge, any tenant in any Property or Acquisition Property, has filed or received any notice required under any federal, provincial or municipal law indicating past or present treatment, storage or disposal of a Hazardous Material or reporting a spill or other release of a Hazardous Material into the environment involving any of the Properties or Acquisition Properties other than those which have been remedied;
6.1.26.4 none of the Properties (other than the Property located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇), ) has at any time been used as a waste storage site or waste disposal site or has been used to operate a waste management business and, to the knobest of the REIT’s knowledge, no such use was made of any of the Properties prior to the purchase of such Properties by or on behalf of the REIT;
6.1.26.5 no REIT Entity has any contingent liability of which the REIT has knowledge or reasonably should have knowledge in connection with any release or the presence of any Hazardous Material on, at, under, through or into the environment from any of Properties or the buildings and operations thereon;
6.1.26.6 neither the REIT nor, to the knowledge of the REIT, any tenant in any Property, generates, transports, treats, stores, handles, processes or disposes of any Hazardous Material, including any waste, subject waste, hazardous waste, deleterious substance or industrial waste (as defined in applicable federal, provincial or municipal legislation) on, at, under or from any of the Properties in contravention of applicable federal, provincial or municipal laws, statutes, regulations, by-laws, permits, or common law requirements enacted for the protection of the natural environment or human health; and
6.1.26.7 to the knowledge of the REIT, no underground storage tanks, vessels, sumps or surface impoundments containing a petroleum product or other Hazardous Material are located on or under any of the Properties in contravention of applicable federal, provincial or municipal laws, statutes, regulations, by-laws, permits, or common law requirements enacted for the protection of the natural environment or human health
Appears in 1 contract
Sources: Underwriting Agreement
Representations and Warranties - General. 6.1 The REIT represents and warrants to the Underwriters, and acknowledges that each of them is relying upon such representations and warranties, that:
6.1.1 each of the REIT Entities has been duly established and is validly existing under the laws of its jurisdiction of incorporation or formation, as the case may be, and has, through its trustees, directors, officers or general partner, as the case may be, all requisite power and capacity under its constating documents to carry on its business as now conducted and as presently proposed to be conducted (including in respect of the Acquisition Properties, except that new entities may be created to hold the Acquisition Properties) and to own, lease and operate its properties and assets, including the Assets, and, in the case of the REIT, to execute, deliver and carry out its obligations under the Material Contracts and in respect of the Proposed Acquisitionthis Agreement;
6.1.2 each of the REIT Entities has conducted and is conducting its business in compliance in all material respects with all applicable laws, rules, environmental legislation, regulations, licences and permits and is licensed, registered or qualified and has all necessary licences and permits in all jurisdictions in which it carries on business to enable its business as now conducted to be carried on and to enable the Assets and the Acquisition Properties (other than any new entities the REIT organizes for purposes of holding any of the Acquisition Properties and any new licenses or permits or registrations or qualifications that may be required by such new entities) to be owned or to be leased and to be operated, except where the failure to be so licensed, registered or qualified would not have a material adverse effect on the REIT, the Assets REIT or the Acquisition PropertiesAssets, and all such licences, registrations, qualifications and permits are valid and existing and in good standing in all material respects and none of them contains any term, provision, condition or limitation which has a material adverse effect on the Assets or the Acquisition PropertiesAssets. The REIT is not aware of any legislation, regulation, by law or other lawful requirement currently in force or proposed to be brought into force by any governmental authority with which the REIT will be unable to comply and/or which would materially adversely affect the Assets or the Acquisition PropertiesAssets, or the REIT’s operations or financial condition;
6.1.3 the REIT has conducted and is conducting its business in compliance in all material respects with the terms and provisions of the Declaration of Trust;
6.1.4 except as disclosed to the Underwriters or as set forth in the Prospectus and any Amendments, as of the Closing Time the REIT will be, directly or indirectly, the beneficial owner of its Assets or its interests therein, and any and all material agreements pursuant to which the REIT will hold any such interests will be, at the Closing Time valid and subsisting agreements in full force and effect, enforceable by the REIT in accordance with their respective terms;
6.1.5 no REIT Entity is in default of any of the provisions of any agreements referred to in paragraph 6.1.4, which default may be material to the REIT’s ability to maintain beneficial ownership of its Assets or its interests therein or which may have a material adverse effect upon any such Assets or upon the operation of the business of the REIT as now conducted or proposed to be conducted in respect of such Assets, nor has any such default been alleged and such Assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situatedsituate; all leases pursuant to which the REIT derives or will derive its interests in such Assets are in good standing and there has been no material default under any such leases (except for minor and temporary arrears and other similar temporary defaults which occur in the ordinary course of business) and all realty, property realty or other property taxes required to be paid with respect to such Assets to the date hereof have been paid;
6.1.6 none of the REIT Entities is in default or in breach of, and the execution and delivery of any Material Contract to which it is a party this Agreement and all documents executed and/or delivered, or to be executed and/or delivered pursuant hereto or thereto (collectively with the Material Contractscollectively, the “Transaction Documents”), the performance and compliance with the terms of this Agreement and the other Transaction Documents, and the issue and sale of the Offered Securities Units will not result in any breach of, or be in conflict with or constitute a default under, any term or provision of the Declaration of Trust or the Material ContractsTrust, any resolution of the trustees or unitholders of the REIT or any mortgage, note, indenture, contract, agreement, written or oral, instrument, lease or other document to which any of the REIT Entities is or will at the Closing Time be a party or by which any of the REIT Entities or their property is or will be bound or any judgment, decree, order, statute, rule or regulation applicable to any of the REIT Entities, except in each case, any breach or default which could not reasonably be expected to have a material adverse effect on the REIT;
6.1.7 the REIT, through its trustees in their capacity as such, has all requisite power and authority: (i) to enter into the Material Contractsthis Agreement; (ii) to issue and deliver the Offered Securities Units in accordance with the provisions of this Agreement, the Subscription Receipt Agreement and the Indenture, as applicable; and (iii) to carry out all the terms and provisions of the Material Contractsthis Agreement;
6.1.8 the representations and warranties of the REIT Entities contained in the Transaction Documents to which any REIT Entity is a party shall be true and correct in all material respects:
6.1.8.1 as of the date hereof, in the case of Transaction Documents executed on or before the date hereof (except to the extent such representations and warranties were given only as of a specified date prior to the date hereof); or
6.1.8.2 as of the date of execution, in the case of Transaction Documents executed after the date hereof; provided that in the case of subparagraph 6.1.8.2, all such Transaction Documents (other than those Transaction Documents to be executed and/or delivered pursuant to the Acquisition Agreements on the Acquisition Closing Date) shall be executed in a form agreed to between the REIT and the Underwriters and their counsel, each acting reasonably, on or before the Closing Date;
6.1.9 this Agreement and the other Transaction Documents to which any of the REIT Entities is a party, have been or, as the case may be, will at the Closing Time be, duly authorized, executed and delivered by the relevant REIT Entities and constitute or, as the case may be, will constitute when so executed and delivered legal, valid and binding obligations of the relevant REIT Entities, enforceable in accordance with their respective terms, except where enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity where equitable remedies are sought and except as rights to indemnity and contribution may be limited by applicable laws;
6.1.10 the REIT is authorized to issue an unlimited number of Unitsunits, of which, as of the date hereof, 49,564,324 Units 35,978,139 units are issued and outstanding as fully-paid Units units of the REIT or as partially paid Units units of the REIT issued under the LTIP;
6.1.11 as of the date hereof, 9,110,269 Class B limited partnership units of Retrocom Limited Partnership exchangeable on a one-for-one basis for Units units of the REIT are issued and outstanding as fully paid units of Retrocom Limited Partnership;
6.1.12 the issued and outstanding Units units of the REIT are listed on the Stock Exchange, and the REIT has applied to the Stock Exchange to have the Debentures, the Subscription Receipts and the Underlying Securities Units listed on the Stock Exchange;
6.1.13 none of the REIT Entities has securities outstanding which are convertible into or exchangeable or exercisable for Units units of the REIT and there are no outstanding options or rights to subscribe for any of the unissued Units units of the REIT except as disclosed in the Prospectus and any Amendments, or except as have been disclosed in writing to the Underwriters;
6.1.14 the financial statements of the REIT contained or incorporated by reference included in the Prospectus have been prepared in accordance with International Financial Reporting Standards Canadian generally accepted accounting principles applied on a basis consistent with prior periods (except as disclosed in such financial statements) (other than any financial statements relating to any “significant acquisition” (for the purposes of applicable Securities Laws andyear ended December 31, for greater certainty, for the purposes of Part 8 of NI 51- 102), whether completed or probable, contained or incorporated by reference in the Preliminary Prospectus and the Prospectus)2010, and present fairly in all material respects the financial position of the REIT as at their respective dates, and the financial statements relating to any “significant acquisition”, whether completed or probable, contained or incorporated by reference in the Preliminary Prospectus and the Prospectus have been prepared in accordance with International Financial Reporting Standards for the three and present fairly in all material respects the consolidated financial position of the applicable properties or business comprising any “significant acquisition”nine months ended September 30, whether completed or probable, at their respective dates, 2011 and no such financial statements contain any no misrepresentation;
6.1.15 there has not been any reportable event (within the meaning of NI 51- 102) with the REIT’s Auditors;
6.1.16 the REIT will apply the net proceeds from the issue and sale of the Offered Securities Units to be issued and sold by it hereunder substantially in accordance with the disclosure set forth under the heading “Use of Proceeds” in the Prospectus;
6.1.17 other than as disclosed in the Prospectus or any Amendment, neither the REIT nor its agents acting on its behalf, have approved or entered into any agreement in respect of:
6.1.17.1 the purchase of any property or the sale, transfer or other disposition of any property currently owned or to be owned, directly or indirectly, by the REIT, whether by asset sale, transfer of shares, or otherwise which would be material to the REIT; or
6.1.17.2 the sale of all or substantially all of the Assets;
6.1.18 other than as publicly disclosed by the REIT or except as disclosed to the Underwriters:
6.1.18.1 no distributions to holders of Units units of the REIT have been declared or paid by the REIT and no capital expenditures or commitments therefor have been made by the REIT;
6.1.18.2 the REIT has not incurred any material obligation or liability, direct, contingent or otherwise; and
6.1.18.3 no transactions of a nature material to the REIT have been entered into or approved by the REIT;
6.1.19 other than as may be required under the Securities Laws and the rules and by-laws of the Stock Exchange, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the creation, issue and sale of the Debentures and the Subscription Receipts and the issue of the Underlying Securities Units as contemplated by this Agreement;
6.1.20 there is no legal or governmental action, proceeding or investigation pending or, to the knowledge of the REIT, threatened, which would question the validity of the creation, issue issuance or sale of the Debentures and the Subscription Receipts and the issue of the Underlying Securities Units or the validity of any action taken or to be taken by the REIT in connection with this Agreement or the Proposed AcquisitionAgreement;
6.1.21 on or before the Closing Time, all actions required to be taken by or on behalf of the REIT, including the passing of all requisite resolutions of the trustees of the REIT shall have occurred so as to validly authorize the creation, issue and sale of the Debentures and the Subscription Receipts and the issue of the Underlying SecuritiesUnits;
6.1.22 all offerings of Units units and debentures convertible into Units units made by the REIT from October 31, 2006 to December 31, 2010 were within the safe harbour limits set out in the “normal growth guidelines” issued by the Department of Finance (Canada) on December 15, 2006 as amended on December 4, 2008, in connection with the SIFT Rules;
6.1.23 following the internal reorganization of the REIT effective October 31, 2010, the REIT has continuously qualified for the REIT Exception under the SIFT Rules as currently enacted and the REIT expects to continue to qualify under the REIT Exception, as proposed to be amended, throughout 2013 2012 and subsequent taxation years;
6.1.24 there are no actions, suits, proceedings, inquiries or investigations pending or, to the knowledge of the REIT, threatened against or affecting the Assets or the REIT Entities, or, to the knowledge of the REIT, the Acquisition Properties Entities at law or in equity or before or by any federal, provincial, municipal or other bureau, agency or instrumentality, domestic or foreign, which may in any way materially and adversely affect the Assets taken as a whole, except as disclosed to the Underwriters;
6.1.25 insurance coverage against such risks in such amounts as are reasonable for prudent owners of similar businesses is maintained by the REIT and the REIT Entities in respect of the Assets or is arranged by the trustees and the directors of the REIT and the REIT Entities, as the case may be, with responsible insurers and that coverage is, and will immediately following the Closing Date be, in full force and effect for the Properties; buildings constructed on the Properties were constructed in accordance with building permits properly issued therefor, if required, and in material compliance with all applicable building and zoning by-laws; and there are no material defects in such buildings; except as disclosed to the Underwriters or where it would not have a material adverse effect on the REIT, the REIT has received no notice of any outstanding work orders or deficiency notices relating to such buildings from or required by any police or fire department, sanitation, health authorities or from any other federal, provincial or municipal authority and there is no matter under discussion with any such departments or authorities relating to work orders; except as disclosed to the Underwriters or where it would not have a material adverse effect on the REIT, such buildings and all chattels required for the effective operation of such buildings are in good operating condition and are in a state of good repair and maintenance;
6.1.26 except as previously disclosed to the Underwriters:
6.1.26.1 all of the Properties and the buildings constructed and operations thereon, and, to the knowledge of the REIT, all of the Acquisition Properties and the buildings constructed and operations thereon, REIT are in material compliance with all applicable federal, provincial and municipal environmental, health and safety laws, statutes, regulations by laws, permits and common law requirements;
6.1.26.2 none of such Properties, Acquisition Properties, buildings or operations is, to the knowledge of the REIT, subject to any judicial or administrative proceeding alleging the violation of any federal, provincial or municipal environmental, health or safety law, statute, regulation permit, by law or common law requirements or is subject to any investigation, by or on behalf of a REIT Entity, evaluating whether any action is needed to respond to the presence or a release of any Hazardous Material at, under, in, through or into the environment, except where it would not have a material adverse effect on the REIT;
6.1.26.3 no REIT Entity nor, to the best of the REIT’s knowledge, any tenant in any Property or Acquisition Property, has filed or received any notice required under any federal, provincial or municipal law indicating past or present treatment, storage or disposal of a Hazardous Material or reporting a spill or other release of a Hazardous Material into the environment involving any of the Properties or Acquisition Properties other than those which have been remedied;
6.1.26.4 none of the Properties (other than the Property located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇), has at any time been used as a waste storage site or waste disposal site or has been used to operate a waste management business and, to the knobest of the REIT’s knowledge, no such use was made of any of the Properties prior to the purchase of such Properties by or on behalf of the REIT;
6.1.26.5 no REIT Entity has any contingent liability of which the REIT has knowledge or reasonably should have knowledge in connection with any release or the presence of any Hazardous Material on, at, under, through or into the environment from any of Properties or the buildings and operations thereon;
6.1.26.6 neither the REIT nor, to the knowledge of the REIT, any tenant in any Property, generates, transports, treats, stores, handles, processes or disposes of any Hazardous Material, including any waste, subject waste, hazardous waste, deleterious substance or industrial waste (as defined in applicable federal, provincial or municipal legislation) on, at, under or from any of the Properties in contravention of applicable federal, provincial or municipal laws, statutes, regulations, by laws, permits, or common law requirements enacted for the protection of the natural environment or human health; and
6.1.26.7 to the knowledge of the REIT, no underground storage tanks, vessels, sumps or surface impoundments containing a petroleum product or other Hazardous Material are located on or under any of the Properties in contravention of applicable federal, provincial or municipal laws, statutes, regulations, by laws, permits, or common law requirements enacted for the protection of the natural environment or human health; where for the purposes of this paragraph 6.1.26, the “knowledge” of the REIT is based upon the internal reporting processes of the REIT pursuant to which its Property managers regularly report to the REIT in respect of the Properties and certain matters, including environmental matters, related thereto, and the REIT has no reason to believe that such internal reporting processes would fail to disclose to the REIT any issue referred to in subparagraphs 6.1.26.2, 6.1.26.3 and 6.1.26.7, and “Hazardous Material” means any contaminant, pol
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Sources: Underwriting Agreement