EXHIBIT (f)
CONFORMED COPY
PROVINCE OF ONTARIO
SECOND SUPPLEMENTAL AGREEMENT dated as of February 18, 2003 to the Fiscal
Agency Agreement (as herein defined), between the Province of Ontario (the
"Province") and The Bank of New York, a trust company organized and existing
under the laws of the State of New York, as fiscal agent, transfer agent,
registrar and principal paying agent (the "Fiscal Agent").
1. Fiscal Agency Agreement. The Province and the Fiscal Agent entered into
a fiscal agency agreement dated as of September 17, 2002 (the "Fiscal Agency
Agreement") in relation to a series of bonds designated by the Province as its
3.50% bonds due September 17, 2007 (the "Bonds") of which U.S.$500,000,000
initial aggregate principal amount was issued in the form of one fully
registered permanent Global Bond (as described in the Fiscal Agency Agreement
and in this Agreement referred to as the "Initial Global Bond") registered in
the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), and
held by the Fiscal Agent, as DTC's custodian.
2. First Supplemental Agreement. The Province and the Fiscal Agent entered
into a first supplemental agreement dated as of October 28, 2002 (the "First
Supplemental Agreement") in relation to U.S.$250,000,000 aggregate principal
amount of the Bonds, issued in the form of one fully registered permanent Global
Bond (the "First Additional Global Bond") registered in the name of Cede & Co.,
as nominee of DTC, and held by the Fiscal Agent, as DTC's custodian.
3. Underwriting Agreement. The Province has entered into an underwriting
agreement dated as of February 10, 2003 (the "Underwriting Agreement") with each
of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and RBC Dominion Securities
Corporation (collectively, the "Underwriters"), for the issue and sale by the
Province of U.S.$250,000,000 aggregate principal amount of additional Bonds as
contemplated in section 15 of the Fiscal Agency Agreement and the provisions of
the Initial Global Bond, to be issued in the form of one fully registered
permanent global certificate without coupons registered in the name of Cede &
Co., as nominee of DTC and held by the Fiscal Agent as custodian for DTC (such
Global Bond is hereinafter referred to as the "Second Additional Global Bond").
4. Definitions. Terms and expressions defined in the Initial Global Bond,
the First Additional Global Bond, the Second Additional Global Bond, the Fiscal
Agency Agreement and the First Supplemental Agreement shall have the same
meaning when used in this Second Supplemental Agreement unless otherwise defined
herein or unless the context otherwise requires.
5. Application of the Fiscal Agency Agreement to the Second Additional
Global Bond.
(a) The provisions of the Fiscal Agency Agreement shall apply to the Second
Additional Global Bond and any Bonds in definitive registered form issued in
exchange therefor in the exact same manner as they apply to the Initial Global
Bond, the First Additional Global Bond or any Bonds in definitive registered
form issued in exchange therefor, respectively.
(b) All references in the Fiscal Agency Agreement to "Bonds" shall be
deemed to include the Second Additional Global Bond and any Bonds in definitive
registered form issued in exchange therefor.
(c) All references in the Fiscal Agency Agreement to the "Global Bonds"
shall be deemed to include the Second Additional Global Bond.
(d) This Second Supplemental Agreement is a supplemental agreement within
the meaning of the Fiscal Agency Agreement and the Fiscal Agency Agreement shall
be read together with the First Supplemental Agreement and this Second
Supplemental Agreement and shall have the exact same effect in the same manner
as if the provisions of the Fiscal Agency Agreement, the First Supplemental
Agreement and this Second Supplemental Agreement were contained in the same
instrument.
(e) The Province and the Fiscal Agent acknowledge and agree that the
Initial Global Bond, the First Additional Global Bond, the Second Additional
Global Bond and any Bonds in definitive registered form issued in exchange
therefor are consolidated and form a single series and have the same terms as to
status or otherwise.
6. Governing Law and Counterparts. This Second Supplemental Agreement shall
be governed by, and interpreted in accordance with, the laws of the Province of
Ontario and the laws of Canada applicable in Ontario. This Second Supplemental
Agreement may be executed in any number of counterparts, including counterparts
by facsimile, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN ALL OTHER RESPECTS, the Fiscal Agency Agreement is confirmed by the
parties as supplemented by the terms of this Second Supplemental Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first written above.
PROVINCE OF ONTARIO
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
Capital Markets Division
Ontario Financing Authority
THE BANK OF NEW YORK
By: /v/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
EXHIBIT 1
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) (the "Depository"), to the Province (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of the Depository (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative of
the Depository), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
REGISTERED
NO. NR-A0003 CUSIP: ▇▇▇▇▇▇▇▇▇
SERIES: NR ISIN: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
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3.50% BOND DUE SEPTEMBER 17, 2007
The Province of Ontario (the "Province"), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum of
TWO HUNDRED FIFTY MILLION UNITED STATES DOLLARS (U.S.$250,000,000) (the
"Principal Amount") in lawful money of the United States of America on September
17, 2007 (the "Maturity Date") (or on such earlier date as the Principal Amount
may become payable hereunder), upon presentation and surrender of this Bond and
to pay interest thereon, together with Additional Amounts (as defined below), if
any, at the rate of 3.50% per annum from September 17, 2002 until the principal
hereof is paid, in two equal semi-annual instalments in arrears on the 17th day
of March and the 17th day of September in each year (each such date an "Interest
Payment Date"), commencing on March 17, 2003.
This is a fully registered Global Bond (the "Global Bond") in respect of a
duly authorized issue of debt securities of the Province designated as its 3.50%
Bonds due September 17, 2007 (the "Bonds"). This Global Bond is limited in
aggregate principal amount to U.S.$250,000,000, and the Bonds, unless there is a
further issuance of Bonds pursuant to section 15 of the Fiscal Agency Agreement,
are limited in principal aggregate amount to U.S.$1,000,000,000. This Global
Bond and all the rights of the registered holder hereof are expressly subject to
a Fiscal Agency Agreement dated as of September 17, 2002 (the "Fiscal Agency
Agreement", which term includes any agreement supplemental thereto, including
the First Supplemental Agreement dated as of October 28, 2002 and the Second
Supplemental Agreement dated as of February 18, 2003), between the Province and
The Bank of New York, as fiscal agent, transfer agent, registrar and principal
paying agent (the "Registrar", which term includes any successor as fiscal
agent, transfer agent, registrar and principal paying agent) to which Fiscal
Agency Agreement reference is hereby made for a statement of the respective
rights, duties and immunities of the Province, the Registrar and holders of the
Bonds and the terms upon which the Bonds are, and are to be, authenticated and
delivered. This Global Bond and the Fiscal Agency Agreement together constitute
a contract, all the terms and conditions of which the registered holder by
acceptance hereof assents to and is deemed to have notice of. Capitalized terms
not defined herein shall have the meaning assigned to them in the Fiscal Agency
Agreement. Further references herein to principal or interest shall be deemed to
also refer to any Additional Amounts which may be payable hereunder.
This Global Bond is issued under the authority of an Order of the
Lieutenant Governor in Council of Ontario, made pursuant to the Financial
Administration Act (Ontario), as amended. This Global Bond shall for all
purposes be governed by, and construed in accordance with, the laws of the
Province of Ontario and the laws of Canada applicable in Ontario.
Payment of the principal of and interest on this Global Bond is a charge on
and payable out of the Consolidated Revenue Fund of Ontario. This Global Bond is
a direct unsecured obligation of the Province and as among the other Bonds,
ranks pari passu and is payable without any preference or priority. This Global
Bond ranks equally with all of the Province's other unsecured and unsubordinated
indebtedness and obligations from time to time outstanding.
Interest on this Global Bond will accrue from the most recent Interest
Payment Date to which interest has been paid, or, if no interest has been paid
or duly provided for, from September 17, 2002, until the principal hereof has
been paid or duly made available for payment. Any overdue principal or interest
on this Global Bond shall bear interest at the rate of 3.50% per annum (before
as well as after judgment) until paid, or if earlier, when the full amount of
the monies payable has been received by the Registrar and notice to that effect
has been given in accordance with the provisions set forth herein. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will be paid to the person in whose name this Global Bond (or one or more
predecessor Global Bonds) is registered at the close of business on March 2nd or
September 2nd (whether or not a Business Day, as defined below), as the case may
be, next preceding such Interest Payment Date (each such day a "Regular Record
Date"). Any such interest not so punctually paid or duly provided for will be
paid to the person in whose name this Global Bond (or one or more predecessor
Global Bonds) is registered at the close of business on a special record date
for the payment of such defaulted interest to be fixed by the Registrar, notice
whereof shall be given to the registered holder hereof not less than ten (10)
days prior to such special record date, or be paid at any time in any other
lawful manner. Interest payments on this Global Bond will include interest
accrued to but excluding the Interest Payment Dates. Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
For the purposes only of disclosure required by the Interest Act (Canada)
and without affecting the interest payable to the registered holder of this
Global Bond, the yearly rate of interest which is equivalent to the rate of
interest for any period of less than one year is the rate of interest for such
period multiplied by a fraction, the numerator of which is the actual number of
days in the 12-month period constituting such year and commencing on the same
day as such period and the denominator of which is the actual number of days
elapsed in such 12-month period.
In the event that the Maturity Date, any Interest Payment Date or any
Redemption Date (as defined in the Fiscal Agency Agreement) with respect to this
Global Bond shall be a day that is not a Business Day, the registered holder
hereof shall not be entitled to payment until the next following Business Day,
and no further interest shall be paid in respect of the delay in such payment,
unless such next following Business Day falls in the next succeeding calendar
month, in which case the related payment will be made on the immediately
preceding Business Day as if made on the date such payment was due. For purposes
hereof, "Business Day" means a day on which banking institutions in The City of
New York, the City of London and the City of Toronto are not authorized or
obligated by law or executive order to close.
If Bonds in definitive registered form are issued in exchange for this
Global Bond, payment of the principal of such Bonds will be made upon
presentation and surrender of such Bonds at the office of the Registrar
maintained for that purpose in the Borough of Manhattan, The City and State of
New York, or at the office of any Paying Agent appointed by the Province for
such purpose pursuant to the Fiscal Agency Agreement. Payment of interest due
prior to or on the Maturity Date will be made by forwarding by post or otherwise
delivering a cheque, to the registered addresses of registered holders of Bonds,
or, at the option of the Province, otherwise transferring funds to the
registered holders of the Bonds. If the Maturity Date, the Redemption Date or
any Interest Payment Date is a Business Day but is a day on which any Paying
Agent is closed at the applicable place of payment, the registered holder will
not be entitled to payment at such location until the next succeeding day on
which banking institutions in such place of payment are not authorized or
obligated by law or executive order to be closed and no further interest shall
accrue in respect of the delay in such payment.
Payment of the principal of and interest on the Bonds will be made in such
coin or currency of the United States of America as, at the time of payment, is
legal tender for payment of public and private debts.
This Global Bond is not subject to any sinking fund and is not redeemable
at the option of the Province, unless certain events occur involving Canadian
taxation as set forth below, and is not repayable at the option of the holder
prior to the Maturity Date.
All payments of, or in respect of, principal of and interest on this Global
Bond will be made without withholding of or deduction for, or on account of, any
present or future taxes, duties, assessments or charges of whatsoever nature
imposed or levied by or on behalf of the Government of Canada, or any province
or political subdivision thereof, or any authority thereof or agency therein
having power to tax, unless such taxes, duties, assessments or charges are
required by law or by the administration or interpretation thereof to be
withheld or deducted. In that event, the Province (subject to its right of
redemption described herein below) will pay to the registered holder of this
Global Bond such additional amounts (the "Additional Amounts") as will result
(after withholding or deduction of the said taxes, duties, assessments or
charges) in the payment to the holders of Bonds of the amounts which would
otherwise have been payable in respect of the Bonds in the absence of such
taxes, duties, assessments or charges, except that no such Additional Amounts
shall be payable with respect to any Bond:
(a) a beneficial owner of which is subject to such taxes, duties,
assessments or charges in respect of such Bond by reason of such owner
being connected with Canada otherwise than merely by the ownership as a
non-resident of Canada of such Bond, but only to the extent of such owner's
interest(s) therein; or
(b) presented for payment more than 15 days after the Relevant Date,
except to the extent that the holder thereof would have been entitled to
such Additional Amounts on the last day of such period of 15 days. For this
purpose, the "Relevant Date" in relation to any Bond means whichever is the
later of:
(i) the date on which the payment in respect of such Bond becomes due and
payable; or
(ii) if the full amount of the moneys payable on such date in respect of
such Bond has not been received by the Registrar on or prior to such
date, the date on which notice is duly given to the holders of Bonds
that such moneys have been so received.
Unless previously redeemed for tax reasons, as provided below, or
repurchased by the Province, the Principal Amount of this Global Bond is due and
payable on September 17, 2007.
The Bonds may be redeemed at the option of the Province in whole, but not
in part, at any time, on giving not less than 30 days' and no more than 60 days'
notice to registered holders of Bonds in accordance with Section 19 of the
Fiscal Agency Agreement (which notice shall be irrevocable), at 100% of the
principal amount thereof, together with interest accrued thereon to the
Redemption Date, if (a) the Province has or will become obliged to pay
Additional Amounts as provided herein, as a result of any change in, or
amendment to, the laws or regulations of Canada or any province or political
subdivision thereof, or any authority thereof or agency therein having power to
tax, or any change in the application or official interpretation of such laws or
regulations, which change or amendment becomes effective on or after September
9, 2002, and (b) such obligation cannot be avoided by the Province taking
reasonable measures available to it, provided that no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Province would be obliged to pay such Additional Amounts were a payment in
respect of the Bonds then due. Prior to the publication of any notice of
redemption pursuant to this paragraph, the Province shall deliver to the
Registrar a certificate signed by an officer of the Province stating that the
Province is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Province so to
redeem have occurred.
The Registrar has been appointed registrar for the Bonds, and the Registrar
will maintain at its office in the Borough of Manhattan, The City and State of
New York, a register (herein, the "Register") for the registration of Bonds and
the registration of transfers and exchanges of Bonds. Subject to the
limitations, terms and conditions set forth herein and in the Fiscal Agency
Agreement, this Global Bond may be transferred at the office of the Registrar by
surrendering this Global Bond for cancellation, and thereupon the Registrar
shall issue and register in the name of the transferee, in exchange herefor, a
new Global Bond (or other global security in the case of a transfer to a
successor depository) having identical terms and conditions and having a like
aggregate principal amount in authorized denominations.
Upon the occurrence of certain events specified in Section 6 of the Fiscal
Agency Agreement, this Global Bond is exchangeable at the office of the
Registrar for Bonds in definitive registered form without coupons of authorized
denominations of U.S.$1,000 and integral multiples thereof in an equal aggregate
principal amount and having identical terms and conditions as this Global Bond,
except to the extent that such terms and conditions specifically relate to this
Global Bond as a global security. On or after such exchange, the Registrar, to
the extent reasonably practicable in the circumstances, shall make all payments
to be made in respect of such Bonds in definitive registered form to the
registered holders thereof regardless of whether such exchange occurred after
the record date for such payment. If this Global Bond is surrendered for
transfer, it shall be accompanied by a written instrument of transfer in form
satisfactory to the Registrar and executed by the registered holder in person or
by the holder's attorney duly authorized in writing. No service charge will be
imposed for any such transfers and exchanges in the normal course of business,
but the Province may require payment of a sum sufficient to cover any stamp or
other tax or other governmental charge in connection therewith.
The Registrar shall not be required to register any transfer or exchange of
this Global Bond during the period from any Regular Record Date to the
corresponding Interest Payment Date or during the period from the Redemption
Record Date (as defined in the Fiscal Agency Agreement) to the Redemption Date.
Neither the Province nor the Registrar shall be required to make any exchange of
Bonds, if as a result thereof, the Province may incur adverse tax or other
similar consequences under the laws or regulations of any jurisdiction in effect
at the time of the exchange. No provision of this Global Bond or of the Fiscal
Agency Agreement shall alter or impair the obligation of the Province, which is
absolute and unconditional, to pay the principal of and interest on this Global
Bond at the time, place and rate, and in the coin or currency, herein
prescribed.
The Province, the Registrar and any Paying Agent may treat the holder in
whose name this Global Bond is registered as the absolute owner hereof for all
purposes, whether or not this Global Bond is overdue, and none of the Province,
the Registrar or any Paying Agent shall be affected by notice to the contrary.
All payments to or on the order of the registered holder of this Global Bond are
valid and effectual to discharge the liability of the Province and the Registrar
and any Paying Agent hereon to the extent of the sum or sums paid.
This Global Bond will become void unless presented for payment within a
period of the lesser of six (6) years, or the period prescribed by law, from the
Relevant Date (as defined above) for payment hereof.
The Province and the Registrar may, at any time or from time to time,
without notice to or the consent of the registered holder of any Bond, enter
into one or more agreements supplemental to the Fiscal Agency Agreement to
create and issue further bonds ranking pari passu with the Bonds in all respects
(or in all respects except for the payment of interest accruing prior to the
issue date of such further bonds or except for the first payment of interest
following the issue date of such further bonds) and so that such further bonds
shall be consolidated and form a single series with the Bonds and shall have the
same terms as to status, redemption or otherwise as the Bonds.
The Fiscal Agency Agreement and the Bonds may be amended by the Province on
the one hand, and the Registrar, on the other hand, without notice to or the
consent of the registered holder of any Bond, for the purpose of curing any
ambiguity, or curing, correcting or supplementing any defective provisions
contained therein or herein, or effecting the issue of further bonds as
described above or in any other manner which the Province may deem necessary or
desirable and which, in the reasonable opinion of the Province, on the one hand,
and the Registrar, on the other hand, will not adversely affect the interests of
the beneficial owners of Bonds.
The Fiscal Agency Agreement contains provisions for convening meetings of
registered holders of Bonds to consent by Extraordinary Resolution (as defined
below) to any modification or amendment proposed by the Province to the Fiscal
Agency Agreement (except as provided in the two immediately preceding
paragraphs) and the Bonds (including the terms and conditions contained herein).
An Extraordinary Resolution duly passed at any such meeting shall be
binding on all registered holders of Bonds, whether present or not; however, no
such modification or amendment to the Fiscal Agency Agreement or to the terms
and conditions of the Bonds may, without the consent of the registered holder of
each such Bond affected thereby: (a) change the Maturity Date of any such Bond
or change any Interest Payment Date; (b) reduce the principal amount of any such
Bond or the rate of interest payable thereon; (c) change the currency of payment
of any such Bond; (d) impair the right to institute suit for the enforcement of
any payment on or with respect to such Bond; or (e) reduce the percentage of the
principal amount of Bonds necessary for the taking of any action, including
modification or amendment of the Fiscal Agency Agreement or the terms and
conditions of the Bonds, or reduce the quorum required at any meeting of
registered holders of Bonds.
The term "Extraordinary Resolution" is defined in the Fiscal Agency
Agreement as a resolution passed at a meeting of registered holders of Bonds by
the affirmative vote of the registered holders of not less than 66-2/3% of the
principal amount of Bonds represented at the meeting in person or by proxy and
voted on the resolution or as an instrument in writing signed by the registered
holders of not less than 66-2/3% in principal amount of the outstanding Bonds.
The quorum at any such meeting for passing an Extraordinary Resolution is one or
more registered holders of Bonds present in person or by proxy who represent at
least a majority in principal amount of the Bonds at the time outstanding, or at
any adjourned meeting called by the Province or the Registrar, one or more
persons being or representing registered holders of Bonds whatever the principal
amount of the Bonds so held or represented.
All notices to the registered holders of Bonds will be published in English
in the Financial Times in London, The Wall Street Journal in New York, U.S.A.,
The Globe and Mail in Toronto, Canada and as long as the Bonds are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, notices will be published in a leading newspaper having general
circulation in Luxembourg (which is expected to be the Luxemburger Wort). If at
any time publication in any such newspaper is not practicable, notices will be
valid if published in an English language newspaper with general circulation in
the respective market regions as the Province, with the approval of the
Registrar, shall determine. Any such notice shall be deemed to have been given
on the date of such publication or, if published more than once or on different
dates, on the first date on which publication is made.
For so long as the Bonds are listed on the Luxembourg Stock Exchange and if
the rules of such stock exchange on which the Bonds are listed so require, the
Province agrees to appoint and maintain a transfer and paying agent in
Luxembourg in the event the Province issues fully registered Bonds in definitive
form.
Unless the certificate of authentication hereon has been executed by the
Registrar by manual signature, this Global Bond shall not be entitled to any
benefit under the Fiscal Agency Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Province of Ontario, pursuant to due authorization
of law, has caused this Global Bond to be duly executed by an authorized
representative and the Seal of the Minister of Finance to be imprinted hereon.
DATED: February 18, 2003 PROVINCE OF ONTARIO
By:
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Authorized Signing Officer
SEAL OF THE MINISTER OF FINANCE
REGISTRAR'S CERTIFICATE
OF AUTHENTICATION
This is one of the Bonds of the series designated therein referred to in the
within-mentioned Fiscal Agency Agreement.
THE BANK OF NEW YORK
as Registrar
By:
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Authorized Signatory
CONFORMED COPY
Dated as of February 10, 2003
PROVINCE OF ONTARIO
U.S.$250,000,000
3.50% Bonds due September 17, 2007
UNDERWRITING AGREEMENT
Province of Ontario
Underwriting Agreement
February 10, 2003
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Incorporated
RBC Dominion Securities Corporation
c/o RBC Dominion Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ▇▇▇
Dear Sirs:
The Province of Ontario (the "Province") proposes to sell the principal
amount of its securities identified in Schedule I hereto (the "Securities") to
the underwriters named in Schedule II hereto (the "Underwriters"). The
Securities will be issued in the form of a fully registered permanent global
security (the "Global Security") registered in the name of Cede & Co., as the
nominee of The Depository Trust Company ("DTC") (and constitute a further
issuance of, will be fungible with and consolidated and form a single series
with the U.S.$500,000,000 aggregate principal amount of 3.50% Bonds due
September 17, 2007 of the Province issued on September 17, 2002 and the
U.S.$250,000,000 aggregate principal amount of 3.50% Bonds due September 17,
2007 of the Province issued on October 28, 2002), subject to the provisions of
the fiscal agency agreement identified on Schedule I hereto (the "Fiscal Agency
Agreement"). This is to confirm the arrangements with respect to the purchase of
the Securities by the Underwriters.
1. Representations and Warranties. The Province represents and warrants to,
and agrees with, the Underwriters that:
(i) The Province has filed with the Securities and Exchange Commission
(the "Commission") a registration statement or registration statements
under Schedule B of the Securities Act of 1933, as amended (the "Securities
Act"), which has or have become effective, for the registration of any
Securities which may be sold in the United States under the Securities Act.
Each such registration statement, as amended at the date of this Agreement,
complies in all material respects with the requirements of the Securities
Act and the rules and regulations thereunder. The Province proposes to file
with the Commission pursuant to Rule 424 under the Securities Act a
supplement to the form of prospectus included in the most recent
registration statement, or amendment thereto, filed with the Commission
relating to the Securities and the plan of distribution thereof and has
advised you of all further information (financial and other) with respect
to the Province to be set forth therein. The registration statement or
registration statements, including the exhibits thereto and the documents
incorporated by reference therein, as amended at the date of this
Agreement, is or are hereinafter called the "Registration Statement"; the
prospectus in the form in which it appears in the Registration Statement,
including the documents incorporated by reference therein, is hereinafter
called the "Basic Prospectus"; such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), including the
documents incorporated by reference therein, is hereinafter called the
"Final Prospectus"; and any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424, including the documents
incorporated by reference therein, is hereinafter called the "Preliminary
Final Prospectus".
(ii) The documents filed by the Province with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
that are incorporated by reference in the Final Prospectus, at the time
they were filed with the Commission, complied in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder.
(iii) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Securities Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (a) the Registration
Statement, as amended as of any such time and the Final Prospectus, as
amended or supplemented as of any such time, complied and will comply in
all material respects with the applicable requirements of the Securities
Act and the rules and regulations thereunder and (b) the Registration
Statement, as amended as of any such time, did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and the Final Prospectus, as amended or supplemented
as of any such time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Province makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Final Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Province by or on behalf of either Underwriter specifically for use in
connection with the preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Province agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Province, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Underwriters and the Province shall agree upon), which
date and time may be postponed by agreement between the Underwriters and the
Province or as provided in Section 10 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Underwriters or to their order for the
respective accounts of the several Underwriters against payment by the several
Underwriters of the purchase price thereof to the Province in immediately
available (same day) funds by transfer to a U.S. dollar account specified by the
Province. The Global Security shall be substantially in the form annexed to the
Second Supplemental Agreement dated as of February 18, 2003 to the Fiscal Agency
Agreement (the "First Supplemental Agreement") and registered in the name of
Cede & Co., as nominee of DTC.
The Global Security shall be made available for inspection and checking by
the Underwriters in Toronto, Ontario not later than 3:00 P.M. (Toronto time) on
the business day prior to the Closing Date. For purposes of this Agreement,
"business day" shall mean a day on which banking institutions in Toronto are not
authorized or obligated by law or executive order to be closed.
4. Listing. The Province agrees with the Underwriters to file or cause to
be filed an application to list the Securities on the Luxembourg Stock Exchange
(the "Stock Exchange") prior to the Closing Date. The Province further agrees to
furnish to the Stock Exchange all documents, instruments, information and
undertakings and to publish all advertisements or other material that may be
necessary in order to effect the listing of the Securities and to cause the
listing of the Securities on the Stock Exchange to be continued for so long as
any of the Securities remain outstanding; provided, however, that if in the
opinion of the Province, the continuation of such listing shall become unduly
onerous, then the Province may delist the Securities from the Stock Exchange;
provided, further, that if the Securities are to be so delisted from the Stock
Exchange, the Province will use its best efforts to obtain the listing of the
Securities on another securities exchange reasonably acceptable to the
Underwriters and the Province prior to the delisting from the Stock Exchange.
The provisions of this section shall apply to any other securities exchange on
which the Securities may be listed mutatis mutandis.
5. Agreements. (a) The Province and the Underwriters agree that:
(i) Prior to the termination of the offering of the Securities, the
Province will not file any amendment to the Registration Statement, any
supplement to the Final Prospectus or any document that would as a result
thereof be incorporated by reference in the Final Prospectus, unless the
Province has furnished to the Underwriters a copy for their review prior to
filing and will not file any such proposed amendment, supplement or
document to which the Underwriters reasonably object, except that the
Underwriters may not object to the filing, as exhibits to an amendment on
Form 18-K/A to the Province's Annual Report on Form 18-K, of reports
prepared by the Province and the Ontario Electricity Financial Corporation
in the ordinary course. Subject to the foregoing sentence, the Province
will cause the Final Prospectus to be filed (or mailed for filing) with the
Commission pursuant to Rule 424. The Province will promptly advise the
Underwriters (i) when the Final Prospectus or any document that would as a
result thereof be incorporated by reference in the Final Prospectus shall
have been filed (or mailed for filing) with the Commission, (ii) when any
amendment to the Registration Statement relating to the Securities shall
have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information relating thereto or
to any document incorporated by reference in the Final Prospectus, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Province of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Province
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus to comply with the
Securities Act or the rules and regulations thereunder, the Province
promptly will prepare and file with the Commission, subject to the first
sentence of paragraph (a)(i) of this Section 5, an amendment or supplement
at its own expense which will correct such statement or omission or an
amendment which will effect such compliance.
(iii) The Province will make generally available to its security
holders and to the Underwriters as soon as practicable after the close of
its first fiscal year beginning after the date hereof, statements of its
revenues and expenditures for such fiscal year which will satisfy the
provisions of Section 11(a) of the Securities Act and the applicable rules
and regulations thereunder.
(iv) The Province will furnish to the Underwriters, upon request,
without charge, copies of the Registration Statement (including exhibits
thereto and documents incorporated by reference therein) and each amendment
thereto which shall become effective on or prior to the Closing Date and,
so long as delivery of a prospectus by an Underwriter or a dealer may be
required by the Securities Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request.
(v) The Province will arrange for the qualification of the Securities
for offer and sale and the determination of their eligibility for
investment under the securities laws of such states and other jurisdictions
of the United States as the Underwriters may designate and will maintain
such qualifications in effect so long as required for the distribution of
the Securities; provided, however, that the Province shall not be obligated
to consent to general service of process under the laws of any state or
other jurisdiction.
(vi) The Province will pay (i) all expenses in connection with (a) the
preparation, issue, execution and delivery of the Securities (including
fees of the registrar, fiscal agent, transfer agent and paying agents and
the fees and expenses of the Province's legal advisors), (b) the fee
incurred in filing the Registration Statement (including all amendments
thereto) with the Commission and (c) any fee payable to rating services in
connection with the rating of the Securities, (ii) the cost of copying the
documents incorporated by reference in the Final Prospectus in such
quantities as the Underwriters may reasonably request and the cost of
delivering the same to locations designated by the Underwriters and
satisfactory to the Province in its reasonable judgment and (iii) all stamp
duties or other like taxes and duties or value added taxes payable under
the laws of the United Kingdom upon and in connection with the execution,
issue and subscription of the Securities or the execution and delivery of
this Agreement and the Fiscal Agency Agreement. Except as provided in
Section 9 hereof, the Province shall not be required to pay or bear any
fees or expenses of the Underwriters.
(b) The Underwriters agree with the Province to deliver to the Province a
letter prior to the Closing Date containing the total sales of the Securities
made in the initial distribution in the United States together with an estimate
of the number of Securities reasonably expected to be sold within the United
States in secondary market transactions within 40 days of the Closing Date;
provided, however, that the Underwriters shall bear no responsibility for any
discrepancy between such estimate and the actual number of Securities sold
within the United States pursuant to such secondary market transactions in such
time period.
6. Selling Restrictions.
(a) United Kingdom. The Underwriters, on behalf of themselves and each of
their affiliates that participates in the initial distribution of the
Securities, represent to and agree with the Province that they and each of their
respective affiliates have complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 (the "FSMA") with
respect to anything done by them in relation to the Securities in, from or
otherwise involving the United Kingdom.
(b) Japan. The Securities have not been and will not be registered under
the Securities and Exchange Law of Japan and, accordingly, the Underwriters, on
behalf of themselves and each of their respective affiliates that participates
in the initial distribution of the Securities, have undertaken that they have
not offered or sold and will not offer or sell any Securities, directly or
indirectly, in Japan or to, or for the benefit of, any Japanese Person or to
others for re-offering or resale, directly or indirectly, in Japan or to or for
the benefit of any Japanese Person except pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan, and under
circumstances which will result in compliance with all applicable laws,
regulations and guidelines promulgated by the relevant Japanese governmental and
regulatory authorities and in effect at the relevant time. For the purposes of
this paragraph, "Japanese Person" shall mean any person resident in Japan,
including any corporation or other entity organized under the laws of Japan. As
part of the offering of the Securities, the Underwriters may offer the
Securities in Japan to a list of 49 offerees in accordance with this Section
6(b).
(c) Hong Kong. The Underwriters, on behalf of themselves and each of their
respective affiliates that participates in the initial distribution of the
Securities, represent to and agree with the Province that they and each of their
respective affiliates have not, directly or indirectly, offered to sell the
Securities and will not offer to sell the Securities in Hong Kong, by means of
any document, other than to persons whose ordinary business is to buy or sell
shares or debentures, whether as principal or agent, or in circumstances which
do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong, and unless permitted to do so under the
securities laws of Hong Kong, have not issued or had in their possession for the
purpose of issue, and will not issue or have in their possession for the purpose
of issue, directly or indirectly, any invitation, document or advertisement
relating to the Securities other than with respect to the Securities intended to
be disposed of to persons outside Hong Kong or only to persons whose business
involves the acquisition, disposal, or holding of securities, whether as
principal or agent.
(d) Sale and Distribution. In addition to the provisions of Sections 6(a),
(b) and (c) above, the Underwriters, on behalf of themselves and each of their
respective affiliates that participates in the initial distribution of the
Securities, represent to and agree with the Province that they and each of their
respective affiliates have not offered, sold or delivered and they will not
offer, sell or deliver, directly or indirectly, any of the Securities or
distribute the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus or any other offering material relating to the Securities, in or from
any jurisdiction except under circumstances that will, to the best of their
knowledge and belief, after reasonable investigation, result in compliance with
the applicable laws and regulations thereof and which will not impose any
obligations on the Province except as contained in this Agreement.
(e) Authorizations. Without prejudice to the provisions of Sections 6(a),
(b) and (c) and except for the qualification of the Securities for offer and
sale and the determination of their eligibility for investment under the
applicable securities laws of such jurisdictions as the Underwriters may
designate pursuant to Section 5(a)(v), the Province shall not have any
responsibility for, and the Underwriters agree with the Province that the
Underwriters and their respective affiliates will obtain, any consent, approval
or authorization required by them for the subscription, offer, sale or delivery
by them of any of the Securities under the laws and regulations in force in any
jurisdiction to which they are subject or in or from which they make such
subscription, offer, sale or delivery of any of the Securities.
7. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Province contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Province made in any certificates
pursuant to the provisions hereof, to the performance by the Province of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and the
Final Prospectus shall have been filed with the Commission pursuant to Rule 424
not later than 5:00 P.M., New York City time, on the second business day
following the date hereof or transmitted by a means reasonably calculated to
result in filing with the Commission by such date.
(b) The Province shall have furnished to the Underwriters, on or prior to
the Closing Date, a written opinion dated the Closing Date of the Deputy
Attorney General, Assistant Deputy Attorney General, 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, addressed
to the Minister of Finance of the Province to the effect that, based on the
assumptions and subject to the qualifications set forth therein:
(i) this Agreement has been duly authorized, executed and delivered by
the Province in accordance with the laws of the Province and the Order or
Orders of the 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
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 First Supplemental Agreement has been duly authorized,
executed and delivered by the Province in accordance with the laws of the
Province 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;
(iv) the Second Supplemental Agreement has been duly authorized,
executed and delivered by the Province in accordance with the laws of the
Province 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;
(v) the Securities have been duly authorized and the Global Security
has been duly executed by the Province in accordance with the laws of the
Province and the Order or Orders of the Lieutenant Governor in Council
applicable thereto, and, when authenticated in accordance with the
provisions of the Fiscal Agency Agreement, as supplemented, and delivered
to and paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Province,
enforceable in accordance with their terms;
(vi) the Securities constitute a further issuance of, and will be
consolidated and form a single series with the U.S.$500,000,000 aggregate
principal amount of 3.50% Bonds due September 17, 2007 issued on September
17, 2002 and the U.S.$250,000,000 aggregate principal amount of 3.50% Bonds
due September 17, 2007 of the Province issued on October 28, 2002;
(vii) the statements in the Final Prospectus under the headings
"Description of Debt Securities and Warrants-- Canadian Income Tax
Considerations" and "Taxation-- Canadian Taxation" are accurate in all
material respects subject to the qualifications therein stated;
(viii) the payment of principal of and interest on the Securities 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);
(ix) no authorization, 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 performance by the Province of this Agreement, the
Fiscal Agency Agreement, as supplemented, or the sale of the Securities by
the Province in the manner contemplated in this Agreement and Final
Prospectus, except for the Order or Orders of the Lieutenant Governor in
Council, which has been obtained;
(x) no stamp or other similar duty or levy is payable under the laws
of the Province of Ontario or the laws of Canada applicable in the Province
in connection with the execution, delivery and performance by the Province
of this Agreement and the Fiscal Agency Agreement, as supplemented, or in
connection with the issue and sale of the Securities by the Province in the
manner contemplated in this Agreement and the Final Prospectus; and
(xi) 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 Securities. 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 Securities, 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.
(c) The Underwriters shall have received on the Closing Date from Shearman
& Sterling, United States counsel to the Province, favorable opinions dated the
Closing Date to the effect that:
(i) the statements in the Final Prospectus under "Description of
Bonds", "Clearing and Settlement" and "Underwriting", insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings;
(ii) the statements in the Final Prospectus under the headings
"Description of Debt Securities and Warrants--United States Income Tax
Considerations", as supplemented by "Taxation-- United States Taxation", to
the extent that they constitute matters of law or legal conclusions, fairly
present the information disclosed therein in all material respects;
(iii) the Registration Statement and the Final Prospectus, excluding
the documents incorporated by reference therein, and any supplements or
amendments thereto (other than the financial statements and other financial
data and statistical data contained therein or omitted therefrom, as to
which such counsel need not express any opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of
the Securities Act and the applicable rules and regulations of the
Commission thereunder; and
(iv) the documents incorporated by reference in the Final Prospectus
(other than the financial statements and other financial and 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 Final Prospectus, as of the dates they were
filed with the Commission, appear on their face to be appropriately
responsive in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations of the Commission thereunder.
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 Final 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 course of such review and
discussion, no facts have come to such counsel's attention which gives them
reason to believe that (A) that the Registration Statement (including the
documents incorporated by reference therein, other than the financial statements
and other financial data and statistical data contained therein or omitted
therefrom, as to which such counsel has not been requested to comment), at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (B) the Final Prospectus as
amended or supplemented, if applicable (including the documents incorporated by
reference therein, other than the financial statements and other financial data
and statistical data contained therein or omitted therefrom, as to which such
counsel has not been requested to comment), as of the date of such Final
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 to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In giving such opinions, such counsel may rely, without independent
investigation, as to matters relating to the federal law of Canada or the laws
of the Province of Ontario, on the opinion of the Deputy Attorney General,
Assistant Deputy Attorney General, 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, rendered pursuant to Section
7(b) hereof.
(d) The Underwriters shall have received on the Closing Date from ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel for the Underwriters, and Stikeman
Elliott LLP, Canadian counsel for the Underwriters, favorable opinions dated the
Closing Date as to the form and validity of the Securities and as to the
proceedings and other related matters incident to the issuance and sale of the
Securities on the Closing Date, and the Underwriters shall have received on the
Closing Date from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ a favorable opinion dated the Closing
Date with respect to the Registration Statement, Preliminary Final Prospectus
and the Final Prospectus and other related matters as the Underwriters may
reasonably require. In giving their opinion, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely upon
the opinion of Stikeman Elliott LLP as to matters of Canadian and Provincial
law.
(e) The Province shall have furnished to the Underwriters 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 Final Prospectus other
than changes arising in the ordinary and normal course.
(f) Subsequent to the execution of this Agreement and on or prior to the
Closing Date, there shall not have been any decrease in the ratings of any of
the Province's long-term debt securities by ▇▇▇▇▇'▇ Investors Service or
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(g) Application shall have been made on or prior to the Closing Date to
list the Securities on the Stock Exchange and the Stock Exchange shall have
approved the Securities for listing.
(h) Prior to the Closing Date, the Province shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled 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 Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Province in writing or by telephone or facsimile transmission, in either case
confirmed in writing.
8. Stabilization and Over-allotment. Any over-allotment or stabilization
transaction by the Underwriters in connection with the distribution of the
Securities shall be effected by them on their own behalf and not as agents of
the Province, and any gain or loss arising therefrom shall be for their own
account. The Underwriters acknowledge that the Province has not been authorized
to issue Securities in excess of the principal amount set forth in Schedule I
hereto. The Underwriters also acknowledge that the Province has not authorized
the carrying out by the Underwriters of stabilization transactions other than in
conformity with applicable rules, including those made pursuant to applicable
United Kingdom legislation and Regulation M under the Exchange Act (if
applicable).
9. Indemnification and Contribution.
(a) The Province agrees to indemnify and hold harmless each Underwriter and
each of its affiliates that participates in the initial distribution of the
Securities and each person who controls either Underwriter or any such affiliate
within the meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the laws of any jurisdiction, including
but not limited to the Securities Act, the Exchange Act or other United States
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
including all documents incorporated by reference, or in the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse, as incurred, each such indemnified party, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Province will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Province by or on behalf of either Underwriter specifically for
use in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall not
enure to the benefit of either Underwriter or affiliate thereof (or any person
controlling either Underwriter or affiliate) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Securities Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus or any Preliminary
Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as amended or supplemented). This indemnity agreement will be in addition to any
liability which the Province may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Province:
(i) to the same extent as the foregoing indemnity from the Province to
such Underwriter, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Province by or on behalf of such Underwriter specifically for use in the
preparation of the documents referred to in the foregoing indemnity;
(ii) against any and all losses, claims, damages or liabilities, joint
or several, to which the Province may become subject under the laws of any
jurisdiction, including but not limited to the Securities Act, the Exchange
Act or other United States Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in any document prepared by such Underwriter and distributed by
it in connection with the offering of the Securities, or which arise out of
or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, and
which statement or omission is not contained in the Preliminary Final
Prospectus, the Final Prospectus or the agreed press releases; and
(iii) against any and all losses, claims, damages or liabilities,
joint or several, to which the Province may become subject arising out of
or in connection with a breach by such Underwriter (or its affiliates that
participate in the initial distribution of the Securities) of any
representation, or failure to perform or observe any agreement, contained
in Section 6 of this Agreement.
Each Underwriter, severally and not jointly, agrees to reimburse, as
incurred, any legal or other expenses reasonably incurred by the Province in
connection with investigating or defending any such loss, claim, damage,
liability or action referred to in clauses (i), (ii) and (iii) above. This
indemnity agreement will be in addition to any liability which either
Underwriter may otherwise have. The Province acknowledges, for the purposes of
clause (i) above, that the statements set forth under the heading "Underwriting"
(except for the statements in the paragraphs relating to the FSMA and the
securities laws of Japan and Hong Kong and the sentence relating to stamp taxes
and other charges and expenses of the offering) in any Preliminary Final
Prospectus or the Final Prospectus constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in any of the
documents referred to in the foregoing indemnity, and the Underwriters confirm
that such statements are correct.
(c) Each of the Province and the Underwriters agree that the Underwriters
shall have and hold the covenants of the Province contained in this Section 9 in
respect of the Underwriters' controlling persons (as defined above) and
affiliates in trust for the benefit of their controlling persons and affiliates.
The Underwriters agree to accept the trusts in this paragraph (c) declared and
provided for and agree to enforce those covenants on behalf of such persons.
(d) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to appoint counsel satisfactory to such indemnified party
to represent the indemnified party in such action; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. An indemnifying party will not, without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld or delayed), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. In order to be entitled
to an indemnity with respect to a claim hereunder, an indemnified party will
not, without the prior written consent of the indemnifying parties (which
consent shall not be unreasonably withheld or delayed), settle or compromise or
consent to the entry of any judgment with respect to such pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnifying parties
are actual or potential parties to such claim or action).
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to appoint counsel to defend such action and approval
by the indemnified party of such counsel, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the first sentence of the next preceding
paragraph (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel, approved
by the Underwriters in the case of paragraph (a) of this Section 9,
representing the indemnified parties under such paragraph (a) who are
parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or (iii).
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 9 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Province on grounds of policy or otherwise, the
Province and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Province and
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount specified in Schedule I hereto bears to the sum of such discount and
the purchase price of the Securities specified in Schedule I hereto and the
Province is responsible for the balance; provided, however, that (a) in no case
shall either Underwriter be responsible for any amount in excess of the
underwriting discount applicable to the Securities purchased by such Underwriter
hereunder and (b) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of the Securities Act shall have the same rights
to contribution as the Underwriters, and each person who controls the Province
within the meaning of the Securities Act and each official of the Province who
shall have signed the Registration Statement shall have the same rights to
contribution as the Province. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (e), notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (e).
10. Default by an Underwriter. If either of the Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriter shall be obligated to take up and pay for the Securities which the
defaulting Underwriter agreed but failed to purchase; provided, however, that in
the event that the aggregate amount of Securities which the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the remaining Underwriter
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriter does not
purchase all the Securities, this Agreement will terminate without liability to
the nondefaulting Underwriter or the Province. In the event of a default by
either of the Underwriters as set forth in this Section 10, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Underwriters shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Province and the
nondefaulting Underwriter for damages occasioned by its default hereunder.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Province, by notice given to the
Province or the Underwriters, as the case may be, prior to delivery and payment
for the Securities, if prior to that time, there shall have occurred such a
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which, in the reasonable
judgment of the Underwriters or the Province, as the case may be, is material
and adverse and such changes, singly or together with any other such change,
makes it, in the reasonable judgment of the Underwriters or the Province, as the
case may be, impracticable to market the Securities on the terms and in the
manner contemplated in the Final Prospectus. Notwithstanding any such
termination, the provisions of Sections 9, 12, and 15 hereof shall remain in
effect.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Province
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of the Underwriters or the Province or any of the officers, directors or
controlling persons referred to in Section 9 hereof, and will survive delivery
of and payment for the Securities.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered,
telecopied or telegraphed and confirmed to them care of RBC Dominion Securities
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇,
attention: ▇▇▇ ▇▇▇▇▇▇ (Telecopier No. 212-428-3018) or, if sent to the Province,
will be mailed, delivered, telecopied or telegraphed and confirmed at Ontario
Financing Authority, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇, attention: Executive Director, Capital Markets Division (Telecopier No.
416-325-8111).
14. Successors and Assigns. This Agreement will enure to the benefit of and
be binding upon the parties hereto and their respective successors and permitted
assigns and the officials and controlling persons referred to in Section 9
hereof, and no other person will have any right or obligation hereunder. Neither
this Agreement nor any interest or obligation in or under this Agreement may be
assigned by the Underwriters without the prior written consent of the Province
or by the Province without the prior written consent of the Underwriters.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable in Ontario.
16. Counterparts. This Agreement may be executed in one or more
counterparts (including counterparts by facsimile) and when a counterpart has
been executed by each party hereto all such counterparts taken together shall
constitute one and the same agreement.
17. Advertisements. All advertisements of the issue of the Securities or
publication of such formal notice as may be required by the rules of the Stock
Exchange in connection with the listing of the securities on the Stock Exchange
shall be published in a form or forms and manner to which the Province consents
in writing prior to the date of publication. The Province may withhold its
consent in its discretion regarding the use of any symbol in any such
advertisement and the publication in which such advertisement is to appear.
18. Time of the Essence. Time shall be of the essence in this Agreement.
19. Representation of Underwriters. In all dealings hereunder, each
Underwriter shall, and has all necessary authority to, act on behalf of the
other Underwriter, and the Province shall be entitled to act and rely upon any
statement, request, notice or agreement given by the Underwriters, jointly or
individually, on behalf of any of the Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Province and the Underwriters.
Very truly yours,
Province of Ontario
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
Capital Markets Division
Ontario Financing Authority
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ N. J. ▇▇▇▇▇▇
-----------------------------------
Authorized Signatory
RBC Dominion Securities Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Authorized Signatory
SCHEDULE I
----------
Underwriting Agreement dated as of February 10, 2003
Underwriters: As listed on Schedule II
Fiscal Agency Agreement: Fiscal Agency Agreement dated as of September
17, 2002 between the Province of Ontario and The Bank of New
York, as Fiscal Agent, as supplemented by the First Supplemental
Agreement dated as of October 28, 2002 and as further
supplemented by the Second Supplemental Agreement dated as of
February 18, 2003.
Title, Purchase Price and Description of Securities
Title: 3.50% Bonds due September 17, 2007
Aggregate principal amount: U.S.$250,000,000
Ranking: The Bonds will constitute a further issuance of, will be
fungible with and consolidated and form a single series with the
U.S.$500,000,000 aggregate principal amount of 3.50% Bonds due
September 17, 2007 issued September 17, 2002 and the
U.S.$250,000,000 aggregate principal amount of 3.50% Bonds due
September 17, 2007 of the Province issued on October 28, 2002.
Denomination: U.S.$1,000 and integral multiples thereof
Aggregate price to public: 101.296% plus accrued interest of
U.S.$3,670,138.89 from and including September 17, 2002 up to but
excluding February 18, 2003, and accrued interest from February
18, 2003 if settlement occurs after that date
Purchase price (include accrued interest or amortization, if any):
101.196% plus accrued interest of U.S.$3,670,138.89 from and
including September 17, 2002 up to but excluding February 18,
2003, and accrued interest from February 18, 2003 if settlement
occurs after that date
Underwriting discount: 0.10%
Maturity: September 17, 2007
Interest rate: 3.50%
Interest payment dates: Interest will be payable in two equal
semi-annual installments in arrears on March 17 and September 17,
commencing March 17, 2003.
Redemption provisions: The Securities will not be redeemable prior to
maturity unless specified events occur involving Canadian
taxation
Withholding Taxes: Principal of and interest on the Securities will be
payable without withholding or deduction for Canadian withholding
taxes to the extent described in the Final Prospectus
Sinking fund provisions: None
Other provisions: None
Pre-Closing Date, Time and Location: February 14, 2003 at the offices
of Shearman & Sterling, Toronto
Closing Date, Time and Location: February 18, 2003 at 9:00 a.m.
Toronto time, upon crediting the Securities through DTC to the
Underwriters after receipt by the Province of the payment
therefor, at the offices of Shearman & Sterling, Toronto
SCHEDULE II
-----------
Principal Amount
of Securities to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ U.S.$125,000,000
Incorporated
RBC Dominion Securities Corporation 125,000,000
-----------------------
Total U.S.$250,000,000
=======================
OPINION OF LEGAL COUNSEL
Ministry of the Ministere du
Attorney General Procureur général
Legal Services Branch Direction des services juridiques
Ministry of Finance Ministere des Finances
[ONTARIO LOGO OMITTED]
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Frost Building South Edifice Frost sud
5th Floor, Room 515 5e etage, bureau 515
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopieur: (▇▇▇) ▇▇▇-▇▇▇▇
Februay 18, 2003
The Honourable ▇▇▇▇▇ ▇▇▇▇▇
Minister of Finance
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Minister:
Subject: Province of Ontario Issue of U.S. $250,000,000
3.50% Bonds due September 17, 2007
I am counsel to the Province of Ontario (the "Province") in connection with
the issue of 3.50% Bonds due September 17, 2007 of the Province in the aggregate
principal amount of U.S. $250,000,000 (the "Bonds") and the sale of the Bonds by
the Province pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of February 10, 2003, among the Province and the
Underwriters named therein.
This opinion is being delivered pursuant to paragraph 7(b) of the
Underwriting Agreement. Terms used but not defined herein shall have the
meanings ascribed thereto in the Underwriting Agreement. In this opinion, the
term "Second Additional Global Bond" shall have the meaning ascribed thereto in
the Second Supplemental Agreement (as defined below).
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of the following:
(a) the Underwriting Agreement;
(b) a fiscal agency agreement (the "Original Fiscal Agency Agreement")
dated as of September 17, 2002 between the Province and The Bank of
New York (the "Registrar"), including the form of global bond appended
thereto;
(c) a first supplemental agreement to the Original Fiscal Agency Agreement
(the "First Supplemental Agreement") dated as of October 28, 2002
between the Province and the Registrar made supplemental to the
Original Fiscal Agency Agreement including the form of the First
Additional Global Bond appended thereto;
(d) a second supplemental agreement to the Original Fiscal Agency
Agreement (the "Second Supplemental Agreement") dated as of February
18, 2003 between the Province and the
- 2 -
Registrar made supplemental to the Original Fiscal Agency Agreement
(the Original Fiscal Agency Agreement, as supplemented by the First
Supplemental Agreement and by the Second Supplemental Agreement is
referred to herein as the "Fiscal Agency Agreement") including the
form of the Second Additional Global Bond appended thereto;
(e) the supplemented form of prospectus of the Province, including the
Basic Prospectus as so supplemented and the documents incorporated by
reference therein, dated February 10, 2003 relating to the offering
and sale of the Bonds (the "Final Prospectus");
(f) the Financial Administration Act (Ontario);
(g) the Capital Investment Plan Act, 1993 (Ontario);
(h) the Interpretation Act (Ontario);
(i) the Proceedings Against the Crown Act (Ontario);
(j) the Currency Act (Canada);
(k) a certified copy of the Order of the Lieutenant Governor in Council of
the Province of Ontario numbered O.C. 1389/2002 dated June 26, 2002
made pursuant to the Financial Administration Act, ( the "Order in
Council") authorizing the issue and sale of the Bonds;
(l) a certificate of the Province dated February 18, 2003 as to the
incumbency of certain representatives of the Province;
(m) a certificate of the Province dated February 18, 2003 relating to the
borrowing authority remaining under the Order in Council;
(n) a written order of the Province to the Registrar relating to the
authentication and delivery of the Second Additional Global Bond; and
(o) the Second Additional Global Bond dated February 18, 2003, executed by
and sealed on behalf of the Province.
I have also examined such certificates of public officials and such other
certificates, documents and records and such matters of law as I have considered
necessary as a basis for or relevant to the opinions hereinafter expressed.
For the purposes of this opinion, I have assumed, with regard to all
documents examined by me, the genuineness of all signatures, the authenticity of
all documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed,
telecopies or photostatic copies. I have also assumed, for the purposes of the
opinions expressed in paragraphs 1 to 5 below, the due execution and delivery of
all agreements by the parties thereto other than the Province.
This opinion is based upon legislation as in effect on the date hereof and
is limited to the laws of the Province of Ontario and the federal laws of Canada
applicable in Ontario. I have assumed that, insofar as any obligation is to be
performed in any jurisdiction outside Ontario, its performance will not be
illegal or
- 3 -
ineffective by virtue of the laws of that jurisdiction.
I have also assumed that, for the purposes of the opinions expressed in
paragraphs 1 and 9 below, each Underwriter, and each of its affiliates that
participates in the initial distribution of the bonds in Ontario, will at all
times comply with the selling restrictions specified in Section 6(d) of the
Underwriting Agreement as they relate to Ontario and have relied on the
undertaking of the Underwriters in this regard.
The opinions given in paragraphs 1, 2, 3, 4, 5, 8 and 11 below are subject
to the following limitations and qualifications:
(A) the enforceability of Underwriting Agreement may be limited by general
equitable principles;
(B) the availability of equitable remedies is in the discretion of a court
of competent jurisdiction (subject to further qualifications below);
(C) pursuant to the Currency Act (Canada) a judgment by a court of the
Province of Ontario must be awarded in Canadian currency and such
judgment may be based on a rate of exchange in existence on a day
other than the day of payment;
(D) a court of the Province of Ontario may refuse to enforce any right of
indemnity or contribution under the Underwriting Agreement to the
extent such is found to be contrary to public policy, as that term is
understood under the laws of the Province of Ontario and the laws of
Canada applicable in Ontario; and
(E) a court of the Province of Ontario may not against Her Majesty the
Queen in right of Ontario:
(i) grant an injunction or make an order for specific performance,
(ii) make an order for recovery or delivery of real or personal
property, or
(iii)issue execution or attachment or process in the nature thereof,
other than garnishment in certain limited circumstances.
Subject to the foregoing, I am of the opinion that:
(1) The Underwriting Agreement has been duly authorized, executed and
delivered by the Province in accordance with the laws of the Province
and the Order in Council, and constitutes a legal, valid and binding
agreement of the Province enforceable in accordance with its terms.
(2) The Original Fiscal Agency Agreement has been duly authorized,
executed and delivered by the Province in accordance with the laws of
the Province and the Order in Council and constitutes a legal, valid
and binding agreement of the Province enforceable in accordance with
its terms.
(3) The First Supplemental Agreement has been duly authorized, executed
and delivered by the Province in accordance with the laws of the
Province and the Order in Council, and constitutes a legal, valid and
binding agreement of the Province enforceable in accordance with its
terms.
- 4 -
(4) The Second Supplemental Agreement has been duly authorized, executed
and delivered by the Province in accordance with the laws of the
Province and the Order in Council, and constitutes a legal, valid and
binding agreement of the Province enforceable in accordance with its
terms.
(5) The Bonds and the Second Additional Global Bond have been duly
authorized, and the Second Additional Global Bond has been duly
executed by and sealed on behalf of the Province in accordance with
the laws of the Province and the Order in Council and, when the Second
Additional Global Bond is authenticated in accordance with the
provisions of the Fiscal Agency Agreement and delivered and paid for
by the Underwriters pursuant to the Underwriting Agreement, it will
constitute a legal, valid and binding obligation of the Province,
enforceable in accordance with its terms.
(6) The Bonds constitute a further issuance of, and will be consolidated
and form a single series with the U.S. $750,000,000 3.50% Bonds due
September 17, 2007, that were issued on September 17, 2002 and October
28, 2002.
(7) The statements in the Final Prospectus under the headings "Description
of Debt Securities and Warrants - Canadian Income Tax Considerations"
and "Taxation - Canadian Taxation", are accurate in all material
respects, subject to the qualifications therein stated.
(8) The payment of principal of and interest on the Bonds 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).
(9) No authorization, 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 performance by the
Province of the Underwriting Agreement, the Original Fiscal Agency
Agreement, the First Supplemental Agreement, the Second Supplemental
Agreement, or the sale of the Bonds by the Province in the manner
contemplated in the Underwriting Agreement and the Final Prospectus,
except for the Order in Council which has been obtained.
(10) No stamp or other similar duty or levy is payable under the laws of
the Province of Ontario or the laws of Canada applicable in the
Province in connection with the execution, delivery and performance by
the Province of the Underwriting Agreement, the Original Fiscal Agency
Agreement, the First Supplemental Agreement, Second Supplemental
Agreement, or in connection with the issue and sale of the Bonds by
the Province in the manner contemplated in the Underwriting Agreement
and the Final Prospectus.
(11) 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 Bonds. 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 Bonds, 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
- 5 -
of Ontario pursuant to the Proceedings Against the Crown Act.
By reason of the matters aforesaid, I hereby advise that each of the said
Bonds of the Province is not inconsistent with any overriding law in force in
the Province and that there is no requirement of the law applicable in the
Province which has not been met or fulfilled.
This opinion may be delivered to the Underwriters who may rely thereon in
connection with the transactions contemplated under the Underwriting Agreement
to the same extent as if such opinion were addressed to them In this regard, I
wish to call to the attention of the Underwriters that, pursuant to section 43
of the Financial Administration Act, where, in the opinion of the Minister of
Finance of Ontario, a person is indebted to the Crown in right of Ontario or in
right of Canada or any agency of the Crown in any specific sum of money, the
Minister has the discretion to retain by way of deduction or set-off, out of
money that is due and payable by the Province to that person, such sum as the
Minister considers fit in the circumstances to be applied against such
indebtedness of that person.
I consent to the inclusion of this opinion in a Form 18-K/A amendment to
the Province's annual report on Form 18-K for the year ended March 31, 2002,
which annual report is incorporated by reference into Registration Statement No.
333-84746 filed with the Securities and Exchange Commission of the United States
of America.
Yours truly,
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Legal Counsel
Legal Services Branch
Ministry of Finance
V. SCHEDULE OF EXPENSES
It is estimated that the expenses of the Province of Ontario in connection
with the sale of the Bonds will be as follows:
Securities and Exchange Commission fee.......................U.S. $ 16,100.00
Printing and Engraving expenses....................................$ 15,000.00
Fiscal Agent, Paying Agent and
DTC Custodian fees and expenses....................................$ 25,850.00
Legal fees and expenses............................................$ 30,000.00
Rating Agency fees and expenses....................................$ 6,286.32
Listing Agent fees and expenses....................................$ 15,000.00
Depository fees and expenses................................................0.00
Underwriters' expense reimbursement.........................................0.00
T0TAL U.S. $ 108,236.32
==================