Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures provided for in this Agreement will be completed at the offices of Burnet, Xxxxxxxxx & Xxxxxx LLP in Calgary, Alberta at the Closing Time, or at such other place as the Trust Parties and the Agents may agree. 7.2 The following are conditions precedent to the obligations of the Agents under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the Agents: 7.2.1 receipt by the Agents of the following documents: 7.2.1.1 favourable legal opinions, dated the Closing Date, from the Trust’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx LLP, in such form as the Agents may reasonably request, including with respect to the following matters: 7.2.1.1.1 as to the due formation or incorporation, as applicable, and valid existence of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties to carry out their obligations under this Agreement and of the Trust to create, authorize and issue the Debentures; 7.2.1.1.2 as to the authorized and issued capital of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor; 7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws; 7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture; 7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents; 7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust and, upon the Trust receiving payment of the purchase price therefor, the Debentures will be validly issued and outstanding; 7.2.1.1.7 that the attributes of the Debentures are consistent in all material respects with the description thereof in the Supplemented Prospectus; 7.2.1.1. 8 (i) the execution and delivery of this Agreement and the Indenture; (ii) the performance and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound; 7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 and 9 of this Agreement; 7.2.1.1.10 confirming its opinions concerning tax matters under the heading “Eligibility For Investment” and under the heading “Canadian Federal Income Tax Considerations” in the Prospectus Supplement; 7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement; 7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures; 7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust to qualify the Debentures for distribution to the public through registrants or dealers registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation; 7.2.1.1.14 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto; 7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and 7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably request; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta or Canada, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties and the other Guarantors; 7.2.1.2 an opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures; 7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language; 7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust Parties, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries: (i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time; (ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened; (iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and (iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time, (v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and (vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request; 7.2.1.5 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4; 7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed to the Agents and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; and 7.2.1.7 one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities Limited, against payment to the Trust, or as the Trust may direct, of the Purchase Price in respect of the Debentures; all in form and substance satisfactory to the Agents, acting reasonably; 7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time; 7.2.3 confirmation in form acceptable to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning; 7.2.4 the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and 7.2.5 the Agents not having previously terminated their obligations pursuant to Section 11 of this Agreement. 7.3 It will be a condition precedent to the Trust’s obligations to issue the Debentures that: 7.3.1 the Trust will have received funds from the Agents by wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, less an amount equal to the Agents’ Fee for such Debentures; 7.3.2 the Agents will have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and 7.3.3 no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures; 7.4 The Agents will provide a direction to CDS with respect to the crediting of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.
Appears in 1 contract
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Initial Units provided for in this Agreement will shall be completed at the offices of BurnetBlake, Xxxxxxxxx Xxxxxxx & Xxxxxx LLP in CalgaryXxxxxxx LLP, Alberta 199 Bay Street, Suite 0000, Xxxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 at the Closing Time, or at such other place as the Trust Parties and the Agents may agree.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsJoint Bookrunners, on behalf of the Underwriters:
7.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the Trust’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx REIT's Canadian counsel, Blake, Xxxxxxx & Xxxxxxx LLP, in such form as the Agents may reasonably request, including with respect to all such matters as the following matters:
7.2.1.1.1 as Underwriters may reasonably request relating to the due formation or incorporationdistribution of the Offered Units, as applicableincluding, without limiting the generality of the foregoing: the creation and valid existence of the Trust and each Guarantor REIT as a trust under the laws Laws of its jurisdiction the Province of formation or incorporationOntario; the Trustees, as on behalf of the case may beREIT, and as to the adequacy of have the power and authority of to own and lease property and carry on business as described in the Trust Parties Prospectus and to carry out their execute, deliver and perform the REIT's obligations under this Agreement Agreement; the creation, authorization, issue and sale of the Trust to createOffered Units; that, authorize and issue in the Debentures;
7.2.1.1.2 as to the authorized and issued capital case of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust andTreasury Units, upon the Trust REIT receiving payment of the purchase price therefor, and in the Debentures case of the Welsh Offered Units, upon redemption by Welsh of the Welsh Redemption Class B Units, such REIT Units will be validly issued outstanding as fully paid and outstanding;
7.2.1.1.7 non-assessable REIT Units; that the attributes of the Debentures REIT Units are consistent in all material respects with the description descriptions thereof in the Supplemented Prospectus;
7.2.1.1. 8 (i) Prospectus and comply with the execution Declaration of Trust; that the Treasury Units have been conditionally approved for listing by the Stock Exchange, subject to the fulfillment of the Standard Listing Conditions; that Computershare Investor Services Inc. has been appointed as registrar and delivery transfer agent of the REIT Units; the enforceability of this Agreement Agreement, subject to customary qualifications and the Indenturelimitations; (ii) the performance and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance by the REIT of this Agreement and does not result in a material breach or violation of (i) the IndentureDeclaration of Trust or (ii) the Laws of the Province of Ontario or the federal Laws of Canada applicable therein; confirming the opinion regarding the qualification of the Offered Units as qualified investments under the heading "Eligibility for Investment" in the Prospectus, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as subject to the enforceability of the indemnity qualifications, assumptions, limitations and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 understandings set out therein; confirming its opinions concerning tax matters under the heading “Eligibility For Investment” and under the heading “"Certain Canadian Federal Income Tax Considerations” " in the Prospectus Supplement;
7.2.1.1.11 confirming that Prospectus, subject to the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent qualifications, assumptions, limitations and registrar for the Debentures;
7.2.1.1.13 understandings set out therein; that all necessary required documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT under applicable Securities Laws to qualify the Debentures Offered Units for distribution and sale to the public in each of the Qualifying Jurisdictions through registrants investment dealers or dealers brokers registered under the applicable legislation laws of such the Qualifying Jurisdiction Jurisdictions who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that laws and the form and terms of their respective registrations; and that no consent, approval, authorization, license, order, registration, qualification or decree of or with any Governmental Authority pursuant to applicable Securities Laws in any Qualifying Jurisdiction is required for the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions issuance, offering, sale or delivery of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably requestOffered Units; it being is understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province Provinces of Alberta Alberta, British Columbia, Ontario and Québec (or Canadaalternatively, make arrangements to have such opinions directly addressed to the Underwriters and counsel to the Underwriters), and (iii) all such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of public and stock exchange officials and certificates of the trustees or officers of the Trust Parties and REIT or officers, directors or managers of the other GuarantorsREIT Entities;
7.2.1.2 an a favourable legal opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local REIT's counsel in QuébecQuebec, dated the Closing Date and acceptable in form and substance to the Agents’ Underwriters' counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec Quebec relating to the use of the French languagelanguage in connection with the distribution of the Offered Units;
7.2.1.3 a favourable legal opinion of the REIT's United States counsel, Shearman & Sterling LLP., dated the Closing Date and in a form and substance acceptable to the Underwriters' counsel, acting reasonably, confirming its opinion under the heading "Certain U.S. Federal Tax Considerations" in the Prospectus;
7.2.1.4 a certificate or certificatesfavourable legal opinion of Xxxxxx and Xxxxxx, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust PartiesP.A., counsel to the best of the knowledgeWelsh, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request;
7.2.1.5 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4;
7.2.1.6 certificates dated the Closing Date, signed with respect to all such matters as the Underwriters may reasonably request relating to the distribution of the Welsh Offered Units, including, without limiting the generality of the foregoing: that Welsh is validly subsisting and duly registered under the laws of its jurisdiction of incorporation; that it has the power and authority to conduct its business; that this Agreement has been duly authorized, executed and delivered and constitutes a legal, valid and binding obligation of Welsh, enforceable in accordance with its terms, subject to customary qualification and limitations; that the execution, delivery and performance by Welsh of this Agreement does not result in a material breach or violation of its constating documents or organizational documents or applicable Laws; it is understood that such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of directors or officers of Welsh;
7.2.1.5 in the Trust event that one or more Persons in the United States purchases Offered Units, a favourable legal opinion, dated the Closing Date or the Over-Allotment Closing Time, as applicable, from the REIT's United States counsel, Xxxxxx and Xxxxxx, P.A., and addressed to the Agents Underwriters and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; and
7.2.1.7 one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities Limited, against payment to the Trust, or as the Trust may direct, of the Purchase Price in respect of the Debentures; all in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;
7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable , to the Agents effect that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stableno authorization, approval or other action by, and (ii) S&P no notice to or filing with, any United States federal governmental authority or regulatory body or, pursuant to the securities law of B/stablethe State of New York, and have not been placed on any New York governmental authority or regulatory body, or any third party that is a credit watch or a comparable downgrade warning;
7.2.4 party to any of the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied Material Agreements, is required in connection with, no registration of the Offered Units is required under the U.S. Securities Act in connection with and satisfied by it at no violation of the federal law of the United States of America or prior the securities law of the State of New York (including the rules and regulations promulgated thereunder or pursuant thereto) will result from (x) the offer, sale and delivery of the Offered Units to the Closing Time; and
7.2.5 Underwriters, or (y) the Agents not having previously terminated their obligations pursuant to Section 11 initial re-offer and resale of this Agreement.
7.3 It will be a condition precedent to the Trust’s obligations to issue Offered Units by the Debentures that:
7.3.1 Underwriters through the Trust will have received funds from U.S. Affiliates in the Agents by wire transfer payable in Toronto representing the Purchase PriceUnited States, provided, in Canadian dollarseach case, less an amount equal to that the Agents’ Fee for such Debentures;
7.3.2 sale of the Agents will have complied Offered Units in the United States is made in accordance with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will have been made and no proceedings for set out in Schedule A hereto, it being understood that such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 The Agents will provide a direction to CDS counsel need not express its opinion with respect to the crediting any subsequent resales of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.Offered Units, and
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Initial Units provided for in this Agreement will shall be completed at the offices of BurnetBlake, Xxxxxxxxx Xxxxxxx & Xxxxxx LLP in CalgaryXxxxxxx LLP, Alberta 199 Bay Street, Suite 0000, Xxxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0 at the Closing Time, or at such other place as the Trust Parties and the Agents may agree.Time.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsJoint Bookrunners, on behalf of the Underwriters:
7.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the Trust’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx REIT's Canadian counsel, Xxxxx, Xxxxxxx & Xxxxxxx LLP, in such form as the Agents may reasonably request, including with respect to all such matters as the following matters:
7.2.1.1.1 as Underwriters may reasonably request relating to the due formation or incorporationdistribution of the Offered Units, as applicableincluding, without limiting the generality of the foregoing: the creation and valid existence of the Trust and each Guarantor REIT as a trust under the laws Laws of its jurisdiction the Province of formation or incorporationOntario; the Trustees, as on behalf of the case may beREIT, and as to the adequacy of have the power and authority of to own and lease property and carry on business as described in the Trust Parties Prospectus and to carry out their execute, deliver and perform the REIT's obligations under this Agreement Agreement; the creation, authorization, issue and sale of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 as to the authorized and issued capital of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust andOffered Units; that, upon the Trust REIT receiving payment of the purchase price thereforfor the Offered Units, the Debentures Offered Units will be validly issued outstanding as fully paid and outstanding;
7.2.1.1.7 non-assessable REIT Units; that the attributes of the Debentures REIT Units are consistent in all material respects with the description descriptions thereof in the Supplemented Prospectus;
7.2.1.1. 8 (i) Prospectus and comply with the execution Declaration of Trust; that the Offered Units have been conditionally approved for listing by the Stock Exchange, subject to the fulfillment of the Standard Listing Conditions; that Computershare Investor Services Inc. has been appointed as registrar and delivery transfer agent of the REIT Units; the enforceability of this Agreement Agreement, subject to customary qualifications and the Indenturelimitations; (ii) the performance and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance by the REIT of this Agreement and does not result in a material breach or violation of (i) the IndentureDeclaration of Trust or (ii) the Laws of the Province of Ontario or the federal Laws of Canada applicable therein; confirming the opinion regarding the qualification of the Offered Units as qualified investments under the heading "Eligibility for Investment" in the Prospectus, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as subject to the enforceability of the indemnity qualifications, assumptions, limitations and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 understandings set out therein; confirming its opinions concerning tax matters under the heading “Eligibility For Investment” and under the heading “"Certain Canadian Federal Income Tax Considerations” " in the Prospectus Supplement;
7.2.1.1.11 confirming that Prospectus, subject to the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent qualifications, assumptions, limitations and registrar for the Debentures;
7.2.1.1.13 understandings set out therein; that all necessary required documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT under applicable Securities Laws to qualify the Debentures Offered Units for distribution and sale to the public in each of the Qualifying Jurisdictions through registrants investment dealers or dealers brokers registered under the applicable legislation laws of such the Qualifying Jurisdiction Jurisdictions who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that laws and the form and terms of their respective registrations; and that no consent, approval, authorization, license, order, registration, qualification or decree of or with any Governmental Authority pursuant to applicable Securities Laws in any Qualifying Jurisdiction is required for the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions issuance, offering, sale or delivery of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably requestOffered Units; it being is understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province Provinces of Alberta Alberta, British Columbia, Ontario and Québec (or Canadaalternatively, make arrangements to have such opinions directly addressed to the Underwriters and counsel to the Underwriters), and (iii) all such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of public and stock exchange officials and certificates of the trustees or officers of the Trust Parties and REIT or officers, directors or managers of the other GuarantorsREIT Entities;
7.2.1.2 an a favourable legal opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local REIT's counsel in QuébecQuebec, dated the Closing Date and acceptable in form and substance to the Agents’ Underwriters' counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec Quebec relating to the use of the French languagelanguage in connection with the distribution of the Offered Units;
7.2.1.3 a favourable legal opinion of the REIT's United States counsel, Xxxxxx and Xxxxxx, P.A., dated the Closing Date and in a form and substance acceptable to the Underwriters' counsel, acting reasonably, confirming its opinion under the heading "Certain U.S. Federal Income Tax Considerations" in the Prospectus;
7.2.1.4 in the event that one or more Persons in the United States purchases Offered Units, a certificate or certificatesfavourable legal opinion, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of Closing Date or the Trust Parties, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust IndentureOver-Allotment Closing Time, as applicable, on its part to be complied with from the REIT's United States counsel, Xxxxxx and satisfied at or prior to the Closing Time;
(ii) no orderXxxxxx, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a wholeP.A., and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request;
7.2.1.5 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4;
7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed to the Agents Underwriters and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; and
7.2.1.7 one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities Limited, against payment to the Trust, or as the Trust may direct, of the Purchase Price in respect of the Debentures; all in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;
7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable , to the Agents effect that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stableno authorization, approval or other action by, and (ii) S&P no notice to or filing with, any United States federal governmental authority or regulatory body or, pursuant to the securities law of B/stablethe State of New York, and have not been placed on any New York governmental authority or regulatory body, or any third party that is a credit watch or a comparable downgrade warning;
7.2.4 party to any of the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied Material Agreements, is required in connection with, no registration of the Offered Units is required under the U.S. Securities Act in connection with and satisfied by it at no violation of the federal law of the United States of America or prior the securities law of the State of New York (including the rules and regulations promulgated thereunder or pursuant thereto) will result from (x) the offer, sale and delivery of the Offered Units to the Closing Time; and
7.2.5 Underwriters, or (y) the Agents not having previously terminated their obligations pursuant to Section 11 initial re-offer and resale of this Agreement.
7.3 It will be a condition precedent to the Trust’s obligations to issue Offered Units by the Debentures that:
7.3.1 Underwriters through the Trust will have received funds from U.S. Affiliates in the Agents by wire transfer payable in Toronto representing the Purchase PriceUnited States, provided, in Canadian dollarseach case, less an amount equal to that the Agents’ Fee for such Debentures;
7.3.2 sale of the Agents will have complied Offered Units in the United States is made in accordance with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will have been made and no proceedings for set out in Schedule A hereto, it being understood that such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 The Agents will provide a direction to CDS counsel need not express its opinion with respect to the crediting any subsequent resales of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.Offered Units, and
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The Provided the Minimum Offering shall have been subscribed for, funds representing the sale thereof shall have cleared, all conditions to closing set forth in Section 3 hereof and Articles V and VI of the Subscription Agreement have been satisfied or waived and neither the Company nor the Placement Agent have notified the other that they do not intend to effect the closing of the purchase and sale of Minimum Offering, a closing (the Debentures provided for in this Agreement will be completed "Initial Preferred Closing") shall take place at the offices of Burnetcounsel to the Placement Agent, Xxxxxxxxx Paul, Hastings, Xxxxxxxx & Xxxxxx LLP LLP, 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, within three (3) business days thereafter (but in Calgaryno event later than five days following the Preferred Termination Date), Alberta at which closing date may be accelerated or adjourned by agreement between the Closing TimeCompany and the Placement Agent. At the Initial Preferred Closing, payment for the Preferred Units issued and sold by the Company shall be made against delivery of the Preferred Shares and Preferred Warrants comprising such Preferred Units. The Company and the Placement Agent may consummate subsequent closings of the Offering, upon mutual agreement only, each of which shall be subject to satisfaction or at such other place waiver of the conditions to closing set forth in Articles V and VI of the Subscription Agreement and in Section 3 hereof, and each of which shall be deemed a "Preferred Closing" hereunder. The date of the last closing of the Offering is hereinafter referred to as the Trust Parties "Final Closing" and the Agents may agree.
7.2 date of any Preferred Closing hereunder is hereinafter referred to as a "Closing Date". The following offering period for the Offering (the "Preferred Offering Period") shall commence on the day the Transaction Documents relating thereto are conditions precedent first made available to [ ] by the obligations Company for delivery in connection with the offering for sale of the Agents under this Agreement, which conditions Preferred Units and shall continue until the Trust covenants earlier to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the Agents:
7.2.1 receipt by the Agents of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the Trust’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx LLP, in such form as the Agents may reasonably request, including with respect to the following matters:
7.2.1.1.1 as to the due formation or incorporation, as applicable, and valid existence of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties to carry out their obligations under this Agreement and of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 as to the authorized and issued capital of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust and, upon the Trust receiving payment of the purchase price therefor, the Debentures will be validly issued and outstanding;
7.2.1.1.7 that the attributes of the Debentures are consistent in all material respects with the description thereof in the Supplemented Prospectus;
7.2.1.1. 8 occur of: (i) the execution and delivery sale of this Agreement and the IndentureMaximum Offering; or (ii) 5:00 p.m. (New York time), April 26, 2001. In any event, however, the performance Placement Agent shall use its reasonable best efforts to close at least $3,000,000 of gross proceeds of the Offering by 11:59 p.m. (New York time) on April 3, 2001. If the Minimum Offering is not sold by 11:59 p.m. (New York time) on April 3, 2001, the Offering will be terminated and compliance with all funds received from Subscribers will be returned, without interest and without any deduction. The day that the terms Preferred Offering Period terminates is hereinafter referred to as the "Preferred Termination Date." The Preferred Termination Date may be extended for up to thirty (30) days by mutual agreement of this Agreement the Placement Agent and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 confirming its opinions concerning tax matters under the heading “Eligibility For Investment” and under the heading “Canadian Federal Income Tax Considerations” in the Prospectus Supplement;
7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust to qualify the Debentures for distribution to the public through registrants or dealers registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably request; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta or Canada, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties and the other Guarantors;
7.2.1.2 an opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust Parties, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request;
7.2.1.5 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4;
7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed to the Agents and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; and
7.2.1.7 one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities Limited, against payment to the Trust, or as the Trust may direct, of the Purchase Price in respect of the Debentures; all in form and substance satisfactory to the Agents, acting reasonably;
7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents not having previously terminated their obligations pursuant to Section 11 of this AgreementCompany.
7.3 It will be a condition precedent to the Trust’s obligations to issue the Debentures that:
7.3.1 the Trust will have received funds from the Agents by wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, less an amount equal to the Agents’ Fee for such Debentures;
7.3.2 the Agents will have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 The Agents will provide a direction to CDS with respect to the crediting of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.
Appears in 1 contract
Closing of the Offering. 7.1 5.1 The closing of the purchase and sale of the Debentures provided for in this Agreement will be completed at the offices of Burnet, Xxxxxxxxx Dxxxxxxxx & Xxxxxx Pxxxxx LLP in Calgary, Alberta at the Closing Time, or at such other place as the Trust Parties Corporation and the Agents Underwriters may agree.
7.2 5.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust Corporation covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsUnderwriters:
7.2.1 5.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 5.2.1.1 favourable legal opinions, dated the Closing Date, from the TrustCorporation’s counsel addressed to the Agents Underwriters and to XxXxxxxx Xxxxxxxx MxXxxxxx Txxxxxxx LLP, in such form as the Agents Underwriters may reasonably request, including with respect to the following matters:
7.2.1.1.1 5.2.1.1.1 as to the due formation or incorporation, as applicable, and valid existence of the Trust Corporation and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties Corporation to carry out their its obligations under this Agreement and of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 5.2.1.1.2 as to the authorized and issued capital of the Trust Corporation and each Guarantor and as to the registered ownership of such issued capital for the Trust Corporation and each Guarantor;
7.2.1.1.3 5.2.1.1.3 that the Trust Corporation is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities LawsProvinces of Canada;
7.2.1.1.4 5.2.1.1.4 that the Trust Corporation and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented ProspectusOffering Memorandum, this Agreement and the Indenture;
7.2.1.1.5 5.2.1.1.5 that all necessary action has been taken by the Trust Corporation and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust Guarantors to validly issue the Debentures to the AgentsUnderwriters;
7.2.1.1. 6 5.2.1.1.6 that the Debentures have been validly authorized for issuance by the Trust Corporation and, upon the Trust Corporation receiving payment of the purchase price therefor, the Debentures will be validly issued and outstanding;
7.2.1.1.7 5.2.1.1.7 that the attributes of the Debentures are consistent in all material respects with the description thereof in the Supplemented ProspectusOffering Memorandum;
7.2.1.1. 8 5.2.1.1.8 (i) the execution and delivery of this Agreement and the Indenture; (ii) the performance and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust Corporation or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust Corporation or any Guarantor is bound;
7.2.1.1.9 5.2.1.1.9 that all necessary action has been taken by the Trust Corporation and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 6 and 9 7 of this Agreement;
7.2.1.1.10 5.2.1.1.10 confirming its opinions opinion concerning tax matters under the heading “Eligibility For Investment” and under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus SupplementOffering Memorandum;
7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 5.2.1.1.11 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust to qualify the Debentures for distribution to the public through registrants or dealers registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 5.2.1.1.12 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust Corporation and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 5.2.1.1.13 that the Trust Units Common Shares are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSXExchanges; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably request; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta or Canada, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties and the other Guarantors;
7.2.1.2 an opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust Parties, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request;
7.2.1.5 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4;
7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed to the Agents and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; and
7.2.1.7 one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities Limited, against payment to the Trust, or as the Trust may direct, of the Purchase Price in respect of the Debentures; all in form and substance satisfactory to the Agents, acting reasonably;
7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents not having previously terminated their obligations pursuant to Section 11 of this Agreement.
7.3 It will be a condition precedent to the Trust’s obligations to issue the Debentures that:
7.3.1 the Trust will have received funds from the Agents by wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, less an amount equal to the Agents’ Fee for such Debentures;
7.3.2 the Agents will have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 The Agents will provide a direction to CDS with respect to the crediting of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.
Appears in 1 contract
Closing of the Offering. 7.1 8.1 The closing of the purchase and sale of the Initial Debentures provided for in this Agreement will shall be completed at the offices of BurnetFogler, Xxxxxxxxx & Xxxxxx Xxxxxxxx LLP in CalgaryToronto, Alberta Ontario at the Closing Time, or at such other place as the Trust Parties and the Agents may agree.
7.2 8.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsJoint Bookrunners, on behalf of the Underwriters:
7.2.1 8.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 8.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the TrustCorporation’s counsel addressed to and the Agents and to XxXxxxxx Manager’s Canadian counsel, Xxxxxx, Xxxxxxxx LLP, in with respect to all such form matters as the Agents Underwriters may reasonably request, including with respect to including, without limiting the following matters:
7.2.1.1.1 as to generality of the due formation or incorporation, as applicable, foregoing: the creation and valid existence of each of the Trust Corporation and each Guarantor the Manager as corporations under the laws of its jurisdiction the Province of formation or incorporationOntario, as the case may be, and as to the adequacy of the their power and authority of capacity to own property and assets and carry on business as described in the Trust Parties Prospectus and the Corporation’s ability to carry out their execute, deliver and perform its obligations under this Agreement and of the Trust Corporation to create, authorize and issue the Debentures;
7.2.1.1.2 as to the authorized and issued capital of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets Prospectus Debentures and to carry out issue the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 Debenture Shares; that all necessary corporate action has been taken by the Trust Corporation in connection with this Agreement and the GuarantorsIndenture; that no breach (whether after notice or lapse of time or both) of or default will occur under (A) the Corporation’s constating documents, to authorize the execution, delivery and performance of each (B) any applicable Laws of the Base Prospectus Province of Ontario and (C) the Material Agreements as a result of the entering into of this Agreement and the Indenture; as to the form and terms of certificate(s) representing the Shares and Prospectus SupplementDebentures complying in all respects with all applicable statutory requirements, as applicableany applicable requirements of the constating documents and by-laws of the Corporation, the rules of the Stock Exchange and the Business Corporations Act (Ontario), and any Amendmentsthat they have been duly approved by the Corporation; the authorization, if applicableissue, sale and distribution of the filing of such documents under Securities Laws Prospectus Debentures and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 Debenture Shares; that the Prospectus Debentures have been validly authorized for issuance by the Trust Corporation and, upon the Trust Corporation receiving payment of the purchase price therefor, the Prospectus Debentures will be validly issued and outstanding;
7.2.1.1.7 ; that the Debenture Shares have been validly authorized for issuance by the Corporation and, upon the conversion, redemption or repayment of the Prospectus Debentures, and when issued, will be validly issued and outstanding as fully paid Shares; that the attributes of the Prospectus Debentures are consistent in all material respects with the description thereof in the Supplemented Prospectus;
7.2.1.1. 8 (i) the execution and delivery of this Agreement Prospectus and the Indenture; (ii) that the performance Prospectus Debentures and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale Shares issuable on conversion of the DebenturesProspectus Debentures have been conditionally approved for listing by the Stock Exchange, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any subject to the fulfillment of the terms, conditions or provisions Standard Listing Conditions; the appointment of Computershare Trust Company of Canada as registrar and transfer agent of the constating documents, by-laws or resolutions Shares and CST Trust Company as registrar and transfer agent of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are soughtProspectus Debentures; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 confirming its opinions concerning tax matters in the Prospectus and any Amendment, including with respect to the qualification of the Prospectus Debentures as investments as described under the heading “Eligibility For for Investment” in the Prospectus, and to the effect that the summary contained in the Prospectus under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement;
7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent is a fair summary of such considerations; and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust Corporation under the applicable securities laws of the Qualifying Jurisdictions to qualify the Prospectus Debentures for distribution and sale to the public in each of the Qualifying Jurisdictions through registrants or dealers persons registered under the applicable legislation of such Qualifying Jurisdiction Securities Laws who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that Securities Laws; no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained under the form and terms laws of the definitive certificates representing Qualifying Jurisdictions to permit the Debentures has been approved and adopted issuance by the Trust and complies Corporation of the Debenture Shares upon the conversion, upon the redemption or at the maturity of the Prospectus Debentures in accordance with the terms and conditions of the Trust Indenture Prospectus Debentures to the holders of the Prospectus Debentures; the first trade by a holder of Debenture Shares upon the conversion, upon the redemption or at the maturity of the Prospectus Debentures will not be subject to the prospectus requirements of the laws of the Qualifying Jurisdictions, and all legal requirements no filing, proceeding, approval, consent or authorization will be required to be made, taken or obtained under the laws of the Qualifying Jurisdiction to permit such trade or distribution, through investment dealers or brokers, if required, registered under the applicable thereto;
7.2.1.1.15 that legislation of the Trust Units are currently listed on Qualifying Jurisdictions who have complied with the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 relevant provisions of such other matters as the Agents and Agents’ counsel may reasonably requestlegislation; it being is understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Alberta or CanadaOntario and may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of officers of the Trust Parties Corporation and the Manager, as applicable, and from other Guarantorsresponsible persons in a position to have knowledge of the applicable facts (including certificates of the registrar and transfer agent for the Shares and Prospectus Debentures and public officials);
7.2.1.2 an opinion of 8.2.1.2 in the Agents’ counselevent that a United States Purchaser has agreed to purchase Prospectus Debentures, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantorsa favourable legal opinion, dated the Closing Date, from the Corporation’s United States counsel, to the effect that no registration of the Prospectus Debentures will be required under the United States Securities Act of 1933, as amended, in connection with the initial re-offer and resale of the Prospectus Debentures by the Underwriters through their U.S. Affiliates in the United States, provided, in each case, that the offer and sale of the Prospectus Debentures, as applicable, in the United States is made in accordance with this Agreement, including the terms set out in Schedule A hereto, it being understood that such counsel need not express its opinion with respect to any subsequent resales of the Prospectus Debentures, the Debenture Shares issuable to the holders of Prospectus Debentures in accordance with the Indenture may be delivered to such holders without registration under the United States Securities Act of 1933, as amended, provided that no commission or other remuneration is given or paid, directly or indirectly, for soliciting the conversion of the Prospectus Debentures into Debenture Shares, and such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of the Corporation;
8.2.1.3 a favourable legal opinion, dated the Closing Date, from XxXxxxxx Xxxxxxxx LLP in form and substance content satisfactory to the AgentsUnderwriters, acting reasonably, with respect as to those such matters as the Agents Underwriters may reasonably request relating to the distribution of the Debenturesrequest;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, 8.2.1.4 a certificate dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Corporation, or such other officers of the Corporation, as may be acceptable in form and substance to the Agents’ counselUnderwriters, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust PartiesCorporation, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquirieseach without personal liability:
(i) that the Trust Parties have Corporation has complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with (other than any terms and satisfied conditions which have been waived by the Joint Bookrunners, on behalf of the Underwriters) by the Corporation at or prior to the Closing Time;
(ii) that the representations and warranties of the Corporation contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; provided, however, that references in such representations and warranties (other than in paragraph 6 hereof) to “Preliminary Prospectus” shall be to the “Prospectus”;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces Corporation has been issued and is continuing and in effect, and no proceedings for such purpose are pending or or, to the knowledge of the persons signing such certificate, are contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iiiiv) since the date respective dates of the Supplemented Prospectus and any Amendments theretoAmendment, to the knowledge of the persons signing such certificate, there has been no material change adverse change, financial or otherwise, in the assets, business, operations, assets, prospects, liabilities (actual, anticipated, contemplated operations or threatened, contingent or otherwise) or capital financial condition of the Trust and the GuarantorsCorporation, taken as a whole, and which is not, or is not required by Securities Laws to be, from that disclosed in the Prospectus or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material as the case may be (including as they existed at the documents incorporated therein by referencetime of filing); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that since the Trust date of this Agreement, no transaction or agreement has satisfied certain factual requirements been entered into by the Corporation which is material to the Corporation other than as described in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably requestProspectus or any Amendment;
7.2.1.5 8.2.1.5 the comfort letter letters from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4paragraph 5.1.3;
7.2.1.6 certificates dated 8.2.1.6 evidence satisfactory to the Closing Date, signed by appropriate officers Underwriters that the Corporation has obtained all necessary approvals for the listing of the Trust addressed Prospectus Debentures and Shares issuable on the conversion of the Prospectus Debentures on the Stock Exchange subject only to the Agents and their counsel, with respect Standard Listing Conditions;
8.2.1.7 evidence satisfactory to the Trust Indenture, all resolutions Underwriters that the directors of the board of trustees Corporation have authorized and approved the issuance of the Trust Prospectus Debentures and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably requestDebenture Shares; and
7.2.1.7 8.2.1.8 one or more definitive or global certificates representing the Initial Debentures registered in the name of CDS Clearing and Depository Securities Limited& Co. and/or in such name or names as the Joint Bookrunners or the Underwriters may direct, against payment to the TrustCorporation, or as the Trust Corporation may direct, of the Purchase Price in respect net of the DebenturesUnderwriting Fee, by wire transfer payable in Toronto; all in form and substance satisfactory to the AgentsUnderwriters, acting reasonably; and
8.2.2 the Underwriters not having previously terminated their obligations pursuant to paragraph 11 of this Agreement.
8.3 It shall be a condition precedent to the Corporation’s obligations to issue the Initial Debentures that:
8.3.1 the Underwriters shall have delivered or caused to be delivered to the Corporation a wire transfer representing the Purchase Price net of the Underwriting Fee, payable by the Underwriters for the Initial Debentures;
7.2.2 8.3.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable to the Agents that the Debentures Underwriters shall have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 the Trust Parties having complied with all the covenants contained herein and satisfied all terms and conditions herein contained herein to be complied with and satisfied by it them at or prior to the Closing Time; and
7.2.5 8.3.3 no order shall have been made and no proceedings for such purpose being pending or threatened which restricts in any manner the Agents distribution of the Initial Debentures.
8.4 The Over-Allotment Option shall be exercisable, in whole or in part, until 12:00 p.m. (Toronto time) on the Over-Allotment Expiry Date. The Over-Allotment Option may be exercised by the Joint Bookrunners, on behalf of the Underwriters, by delivery of written notice to the Corporation confirming the number of Over- Allotment Debentures in respect of which the Over-Allotment Option is being exercised and the date and time on such date (the “Over-Allotment Closing Time”) which such Over-Allotment Debentures are to be purchased. Upon exercise of the Over-Allotment Option, the Corporation shall become obligated to issue and sell to the Underwriters and the Underwriters shall become severally obligated to purchase, in their respective percentages set out in paragraph 13.1 hereof, from the Corporation the total number of Over-Allotment Debentures, as applicable, as to which the Underwriters are exercising the Over-Allotment Option. The Over-Allotment Option Closing Time shall be determined by the Joint Bookrunners on behalf of the Underwriters but, unless otherwise agreed between the Joint Bookrunners and the Corporation, shall not be earlier than three Business Days or later than five Business Days after the exercise of the Over- Allotment Option and, in any event, shall not be earlier than the Closing Date nor later than five Business Days after the Over-Allotment Expiry Date. If the Over-Allotment Option is exercised as to all or any portion of the Over- Allotment Debentures in accordance with the terms hereof, certificates in definitive or global form for such Over-Allotment Debentures and payment therefor, shall be delivered at the Over-Allotment Closing Time in the manner, and upon the terms and conditions, set forth in paragraphs 8.1, 8.2.1.8 and 8.4 except that reference therein to the Initial Debentures and Closing Time shall be deemed, for the purposes of this paragraph 8.4, to refer to such Over-Allotment Debentures and Over-Allotment Closing Time, respectively, and the amount payable by the Underwriters to the Corporation in respect of the exercise of the Over-Allotment Option shall be equal to the number of Over-Allotment Debentures in respect of which the Over-Allotment Option is exercised multiplied by the Offering Price and the amount payable by the Corporation to the Underwriters in respect of such exercise shall be equal to 4.00% of the aggregate purchase price for the Over-Allotment Debentures. If the Over-Allotment Option is exercised in accordance with the terms hereof, the obligations of the Underwriters to purchase the Over-Allotment Debentures shall be conditional on the delivery by the Corporation of the certificate referred to in paragraph 8.2.1.4 as of the Over-Allotment Closing Time as if references therein to Closing Time were references to Over-Allotment Closing Time and such other certificates or other documents in form and substance satisfactory to the Underwriters as they may reasonably request. The obligation of the Underwriters to complete the purchase of the Over- Allotment Debentures upon the exercise of the Over-Allotment Option at the Over-Allotment Closing Time shall be conditional on the Underwriters not having previously terminated their obligations pursuant to Section paragraph 11 of this Agreement.
7.3 , with reference therein to “Closing Time” being deemed, for the purposes hereof, to refer to the Over-Allotment Closing Time. It will shall be a condition precedent to the TrustCorporation’s obligations to issue the Over-Allotment Debentures that:
7.3.1 hereunder upon the Trust will have received funds from exercise of the Agents by wire transfer payable in Toronto representing Over-Allotment Option at the Purchase Price, in Canadian dollars, less an amount equal to Over-Allotment Closing Time that the Agents’ Fee for such Debentures;
7.3.2 the Agents will Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Over-Allotment Closing Time; and
7.3.3 no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 The Agents will provide a direction to CDS with respect to the crediting of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Subscription Receipts, provided for in this Agreement will shall be completed at the offices of Burnet, Xxxxxxxxx & Xxxxxx LLP in Calgary, Alberta electronically at the Closing Time, or at such other place as the Trust Parties and the Agents may agree.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsLead Underwriters on behalf of the Underwriters:
7.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the TrustCorporation’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx counsel, Blake, Xxxxxxx & Xxxxxxx LLP, in with respect to all such form matters as the Agents Underwriters may reasonably request, including with respect including, without limiting the generality of the foregoing: to the following matters:
7.2.1.1.1 as to the due formation or incorporation, as applicable, existence and valid existence corporate power and capacity of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties to carry out their obligations under this Agreement and of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 as to Corporation; the authorized and issued share capital of the Trust Corporation; the creation, authorization, issue and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each sale of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust andSubscription Receipts; that, upon the Trust Corporation receiving payment of the purchase price thereforPurchase Price, the Debentures Subscription Receipts will be legal, valid and binding obligations of the Corporation enforceable in accordance with their terms and the terms of the Subscription Receipt Agreement; the Underlying Common Shares have been duly authorized and reserved for issuance and, when issued in accordance with the terms of the Subscription Receipt Agreement, will be validly issued and outstanding;
7.2.1.1.7 outstanding as fully paid and non- assessable Common Shares; that the attributes of the Debentures Subscription Receipts and the Underlying Common Shares are consistent in all material respects with the description descriptions thereof in the Supplemented Prospectus;
7.2.1.1. 8 Term Sheet, and the form of definitive certificates representing the Subscription Receipts and the Underlying Common Shares, respectively, comply with the Corporation’s constating documents (i) in the case of the Underlying Common Shares), the Subscription Receipt Agreement (in the case of the Subscription Receipts), applicable Laws and Stock Exchange rules; that the Underlying Common Shares have been conditionally approved for listing by the Stock Exchange, subject to the fulfillment of the Standard Listing Conditions; the appointment of Computershare Investor Services Inc. as registrar and transfer agent of the Common Shares and Computershare Trust Company of Canada as the registrar and transfer agent of the Subscription Receipts and the escrow agent under the Subscription Receipt Agreement; the enforceability of this Agreement, the Subscription Receipt Agreement and the Subscription Agreements; the obtaining of all necessary approvals of the Canadian Securities Regulators and the Stock Exchange and under the laws of the Province of Ontario in connection with the sale of the Subscription Receipts to the Underwriters and/or to Substituted Purchasers; that the execution and delivery of this Agreement, the Subscription Receipt Agreement and the Indenture; (ii) Subscription Agreements by the performance and compliance with the terms of this Agreement Corporation and the Indenture; and (iii) the issue and sale consummation of the Debenturestransactions contemplated herein and therein, do not and will not result in any a breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of (A) the terms, conditions or provisions of the constating documents, by-laws or resolutions documents of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrumentCorporation, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 confirming its opinions concerning tax matters under the heading “Eligibility For Investment” and under the heading “Canadian Federal Income Tax Considerations” in the Prospectus Supplement;
7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust to qualify the Debentures for distribution to the public through registrants or dealers registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably request; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta or Canada, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties and the other Guarantors;
7.2.1.2 an opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust Parties, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request;
7.2.1.5 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4;
7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed to the Agents and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; and
7.2.1.7 one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities Limited, against payment to the Trust, or as the Trust may direct, of the Purchase Price in respect of the Debentures; all in form and substance satisfactory to the Agents, acting reasonably;
7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents not having previously terminated their obligations pursuant to Section 11 of this Agreement.
7.3 It will be a condition precedent to the Trust’s obligations to issue the Debentures that:
7.3.1 the Trust will have received funds from the Agents by wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, less an amount equal to the Agents’ Fee for such Debentures;
7.3.2 the Agents will have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 The Agents will provide a direction to CDS with respect to the crediting of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time prior to the Closing Date to permit such crediting.or
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Units provided for in this Agreement will shall be completed at the offices of BurnetFasken Xxxxxxxxx XxXxxxxx LLP, Xxxxxxxxx & Xxxxxx LLP in Calgary000 Xxx Xxxxxx, Alberta Xxxxx 0000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, or to the extent the Over-Allotment Option is exercised, shall be completed at such other place as office at the Trust Parties and the Agents may agreeOption Closing Time.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the AgentsUnderwriters:
7.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the TrustREIT’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx counsel, Fasken Xxxxxxxxx DuMoulin LLP, in and from the Underwriters’ counsel, Torys LLP, with respect to all such form matters as the Agents Underwriters may reasonably request, including with respect to including, without limiting the following mattersgenerality of the foregoing:
7.2.1.1.1 (i) as to the due formation or incorporation, as applicablethe case may be, and valid existence of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power and authority of the Trust Parties REIT to carry out their its obligations under this Agreement and of the Trust to create, authorize and issue the DebenturesUnits;
7.2.1.1.2 (ii) as to the authorized and issued capital of the Trust and each Guarantor and REIT;
(iii) that except as to disclosed in the Prospectus, the REIT is the registered ownership owner of such all of the issued capital for the Trust and outstanding shares or units of each Guarantorof its directly owned subsidiaries;
7.2.1.1.3 (iv) that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor Opinion Entities has all requisite power, power and capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement Prospectus and the Indentureany Amendments;
7.2.1.1.5 (v) that all necessary action has been taken by the Trust and the Guarantors, REIT to authorize the execution, execution and delivery and performance of each of the Base Prospectus and Preliminary Prospectus, the Prospectus Supplement, as applicable, and any Amendments, if applicable, and the filing of such documents under the Securities Laws and for in each of the Trust Qualifying Jurisdictions, to validly issue the Debentures Units to the AgentsUnderwriters, and to authorize the performance by the REIT of this Agreement;
7.2.1.1. 6 (vi) that the Debentures Units have been validly authorized for issuance by the Trust issued and, upon the Trust REIT receiving payment of the purchase price thereforfor such Units, the Debentures will be validly issued and outstandingoutstanding as fully paid units of the REIT;
7.2.1.1.7 (vii) that the attributes of the Debentures Units are consistent in all material respects with the description thereof in the Supplemented Prospectus;
7.2.1.1. 8 (iviii) that none of (a) the execution and delivery of this Agreement and the Indenture; Relevant Contracts, (iib) the performance and compliance with the terms of this Agreement and the Indenture; and Relevant Contracts, or (iiic) the issue and sale of the Debentures, will not result Units results in any breach of, or be is in conflict with or constitute constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute constitutes a default under under, any of the terms, conditions or provisions of the constating documents, by-regulations, by laws or resolutions of the boards or securityholders of any of the Trust REIT Entities or, to the actual knowledge of the specific lawyers of Fasken Xxxxxxxxx XxXxxxxx LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or any Guarantor or inquiry, of any agreement or instrument, including this Agreement and the IndentureTransaction Documents, in respect by which any of the Business by which the Trust or any Guarantor REIT Entities is bound;
7.2.1.1.9 (ix) that all necessary action has been taken by the Trust and the Guarantors applicable REIT Entity to authorize the execution, execution and delivery and performance of this Agreement and the Indenture, as applicableRelevant Contracts, and this Agreement and the Indenture have each Relevant Contract has been duly executed and delivered by each of them, as applicable, the applicable REIT Entity and constitutes a legal, valid and binding obligation of each of them, as applicablesuch REIT Entity, enforceable in accordance with its terms, except as enforcement of this Agreement the Relevant Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are soughtsought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections paragraph 8 and 9 of this Agreement;
7.2.1.1.10 (x) confirming its opinions concerning tax matters in the Prospectus under the heading headings “Eligibility For for Investment” and under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement”;
7.2.1.1.11 confirming (xi) that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Canadian Stock Transfer Company at its principal office in Calgary Toronto has been duly appointed as the transfer agent and registrar for units of the DebenturesREIT;
7.2.1.1.13 (xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT under the Securities Laws to qualify the Debentures Units for distribution to the public in each such Qualifying Jurisdiction through registrants or dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 (xiii) that the form and terms of the definitive certificates representing the Debentures has Units have been duly approved and adopted by the Trust and complies with REIT;
(xiv) that the terms and conditions Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the Trust Indenture requirements of the Stock Exchange, and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently will be listed on the Exchanges and Stock Exchange effective at the outstanding Convertible Debentures are listed on the TSXClosing Time; and
7.2.1.1.16 such (xv) as to all other legal matters as reasonably requested by counsel to the Agents and Agents’ counsel may reasonably request; Underwriters relating to the distribution of the Units, it being understood that such counsel may rely on: (i) on customary assumptions and qualifications, (ii) qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta Ontario or CanadaCanada and may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties REIT’s officers; and the other Guarantors;
7.2.1.2 an opinion of the AgentsUnderwriters’ counsel, which counsel may rely on the opinion of the TrustREIT’s counsel as to matters which specifically relate to the Trust Parties or REIT Entities;
7.2.1.2 in the other Guarantorsevent that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing DateTime occurs, in form and substance satisfactory from special United States counsel to the AgentsREIT, acting reasonablythat the offer and sale of Units in the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and sale of Units in the United States is made in accordance with respect to those matters the terms as the Agents may reasonably request relating to the distribution of the Debenturesset out in Schedule A hereto;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the Trust PartiesREIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of the Relevant Contracts to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, thereto there has been no material change adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets or the Acquisition Properties, or in any current or intended business, affairs, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) ), capital or capital ownership of the Trust and REIT or the GuarantorsREIT Entities, taken as a whole, and which is not, or is not required by Securities Laws to be, from that disclosed in or contemplated by the Supplemented Prospectus, any Amendment, Prospectus or any Supplementary Material Amendment (including as they existed at the documents incorporated therein by referencetime of filing); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents Underwriters and the AgentsUnderwriters’ counsel may reasonably request;
7.2.1.5 7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 certificates dated evidence satisfactory to the Closing DateUnderwriters that the REIT has authorized and approved this Agreement, signed by appropriate officers the issuance of the Trust addressed to the Agents Units and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions matters relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably requestthereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Debentures Units registered in the name of CDS Clearing and Depository Securities Limited& Co., or in such name or names as the Underwriters may direct, against payment to the TrustREIT, or as the Trust REIT may direct, of the Purchase Price in respect Price, less the full amount of the Debentures; Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;
7.2.2 7.2.3 the representations and warranties of the Trust Parties REIT contained herein being true and correct as of the Closing Time with the same force and effect as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable and as of the Closing Time after giving effect to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warningtransactions contemplated hereby;
7.2.4 the Trust Parties REIT having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents Underwriters not having previously terminated their obligations pursuant to Section 11 paragraph 10 of this Agreement.
7.3 It will shall be a condition precedent to the Trustobligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Debentures Units that:
7.3.1 7.4.1 the Trust will Underwriters shall have received funds from made or delivered, or caused to be made or delivered, to the Agents by REIT, or as the REIT may direct, a wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, Price payable by the Underwriters for the Units less an amount equal to the Agents’ Fee for such Debenturesfull amount of the Underwriting Fee;
7.3.2 7.4.2 the Agents will Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and;
7.3.3 7.4.3 no order will shall have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that which restricts in any manner the distribution of the Debentures;Units or the completion of the transactions contemplated by the Transaction Documents; and
7.4 The Agents will provide a direction to CDS with respect 7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the crediting REIT, acting reasonably and all of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time conditions therein have been fulfilled (or waived) prior to the Closing Date Time.
7.5 It shall be a condition precedent to permit the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such creditingpurpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to subparagraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Offered Units provided for in this Agreement will shall be completed at the offices of Burnet, Xxxxxxxxx & Xxxxxx Goodmans LLP in CalgaryToronto, Alberta Ontario at the Closing Time, or at such other place as the Trust Parties and the Agents may agree.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsLead Underwriters, on behalf of the Underwriters:
7.2.1 receipt by the Agents Underwriters of the following documentsfollowing:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the Trust’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx REIT's Canadian counsel, Goodmans LLP, in such form as and substance satisfactory to the Agents may reasonably requestUnderwriters and their counsel, including acting reasonably, with respect to the following matters:
7.2.1.1.1 as to : the due formation or incorporation, as applicable, creation and valid existence of the Trust and each Guarantor REIT as a trust under the laws of the Province of Ontario, its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of capacity to own and lease property and assets and carry on business as described in the Trust Parties Prospectus and its ability to carry out their execute, deliver and perform its obligations under this Agreement Agreement; the creation, authorization, issue, sale and distribution of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 as to the authorized and issued capital of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust andUnits; that, upon the Trust REIT receiving payment of the purchase price thereforOffering Price for the Offered Units and Over-Allotment Units, respectively, the Debentures Units will be validly issued and outstanding;
7.2.1.1.7 outstanding as fully paid units of the REIT; that the attributes of the Debentures Units are consistent in all material respects with the description descriptions thereof in the Supplemented Prospectus;
7.2.1.1. 8 (i) ; that the execution and delivery of this Agreement Offered Units and the Indenture; (ii) Over-Allotment Units have been conditionally approved for listing by the performance and compliance with TSXV, subject only to the terms of this Agreement and the Indenture; and (iii) the issue and sale fulfillment of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state Standard Listing Conditions; the appointment of facts (whether after notice or lapse of time or both) which would constitute a default under any of Computershare Investor Services Inc. as registrar and transfer agent for the terms, conditions or provisions of Units; the constating documents, by-laws or resolutions of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 confirming its opinions statements concerning tax matters under the heading “"Eligibility For for Investment” " in the Prospectus are accurate, and the summary contained in the Prospectus under the heading “"Certain Canadian Federal Income Tax Considerations” in " fairly describes the Prospectus Supplement;
7.2.1.1.11 confirming that principal Canadian federal income tax considerations as at the Debentures are not precluded as investments date thereof generally applicable under the statutes listed under Tax Act to prospective purchasers of Units, in each case subject to the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent restrictions, qualifications and registrar for the Debentures;
7.2.1.1.13 assumptions set out therein; and that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT under the applicable securities laws of the Qualifying Jurisdictions to qualify the Debentures Units for distribution and sale to the public in each of the Qualifying Jurisdictions through registrants or investment dealers registered under the applicable legislation securities laws of such the Qualifying Jurisdiction Jurisdictions who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably requestsecurities laws; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Alberta or CanadaOntario and may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of officers of the Trust Parties and the other GuarantorsREIT's officers;
7.2.1.2 an a favourable legal opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local REIT's counsel in QuébecQuebec, BCF Avocats, dated the Closing Date and acceptable in form and substance to the Agents’ Underwriters' counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec Quebec relating to the use of the French languagelanguage in connection with the distribution of the Units;
7.2.1.3 in the event that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated the Closing Date, from the REIT's United States counsel, Xxxxxxx Xxxx LLP, to the effect that no registration of the Units will be required under the United States Securities Act of 1933, as amended, in connection with the offering of the Units for sale in the United States;
7.2.1.4 a certificate or certificates, dated the date of delivery Closing Date and signed by Baytex’s President those trustees and Chief Executive Officer those senior officers of the REIT as may be acceptable to the Underwriters, acting reasonably, in form and Chief Financial Officer substance satisfactory to the Underwriters, acting reasonably, with respect to:
(i) the constating documents of the REIT;
(ii) the resolutions of the trustees of the REIT relevant to the allotment, issue and sale, as the case may be, of the Units and the authorization of this Agreement; and
(iii) the incumbency and signatures of signing officers of the REIT;
7.2.1.5 a certificate dated the Closing Date and signed by the chief executive officer and the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the Trust PartiesREIT, each without personal liability:
(i) that the REIT has complied with all terms and conditions of this Agreement to be complied with thereby at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; provided, however, references in such representations and warranties to "Preliminary Prospectus" shall be to "Prospectus";
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in the Units has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:are contemplated or threatened;
(iiv) since the Trust Parties have complied with all covenants respective dates of the Prospectus and satisfied all terms and conditions any Supplementary Material there has been no material adverse change, financial or otherwise, in the assets, business, operations or financial condition of the REIT or the REIT Entities (taken as a whole), from that disclosed in the Prospectus or any Amendment, as the case may be; and
(v) since the date of this Agreement Agreement, no transaction or agreement has been entered into by any REIT Entity which is material to the REIT Entities (taken as a whole) other than as described in the Prospectus or any Supplementary Material; and the Trust Indenture, all of those matters will in fact be true and correct as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material (including the documents incorporated therein by reference); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably request;
7.2.1.5 7.2.1.6 the comfort letter letters from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4paragraph 4.3;
7.2.1.6 certificates dated 7.2.1.7 evidence satisfactory to the Closing Date, signed by appropriate officers Underwriters that the REIT has obtained all necessary approvals for the listing of the Trust addressed Offered Units and Over-Allotment Units on the TSXV, subject to the Agents and their counsel, with respect Standard Listing Conditions;
7.2.1.8 evidence satisfactory to the Trust Indenture, all resolutions of Underwriters that the board of trustees of the Trust REIT have authorized and other actions relating to this Agreement and to approved the creation, allotment, issue and sale issuance of the DebenturesUnits, the incumbency and specimen signatures of signing officers and with respect to such other all matters as the Agents may reasonably request; andrelating thereto;
7.2.1.7 7.2.1.9 one or more definitive or global certificates (or at the election of the Lead Underwriters either in physical or book entry only form) representing the Debentures Offered Units registered in the name of CDS Clearing and Depository Securities Limited& Co. and/or in such name or names as the Lead Underwriters may direct, against payment to the TrustREIT, or as the Trust REIT may direct, of the Aggregate Purchase Price in respect net of the DebenturesUnderwriting Fee and Underwriters' expenses as contemplated in paragraph 9 by wire transfer payable in Toronto; and
7.2.1.1 written undertakings of each of the senior officers and trustees of the REIT as contemplated by paragraph 15.2 hereof, all in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;; and
7.2.2 the representations and warranties of the Trust Parties contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 the Trust Parties having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents Underwriters not having previously terminated their obligations pursuant to Section 11 paragraph 10 of this Agreement.
7.3 It will shall be a condition precedent to the Trust’s REIT's obligations to issue the Debentures Offered Units, that:
7.3.1 the Trust will Underwriters shall have received funds from delivered or caused to be delivered to the Agents by REIT's Canadian counsel, in trust, a wire transfer payable in Toronto representing the Aggregate Purchase Price, in Canadian dollars, less an amount equal to Price net of the Agents’ Underwriting Fee and Underwriters' expenses as contemplated by paragraph 9 payable by the Underwriters for such Debenturesthe Offered Units;
7.3.2 the Agents will Underwriters shall have complied with the covenants and satisfied all terms and conditions herein contained to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will shall have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that which restricts in any manner the distribution of the Debentures;Units.
7.4 The Agents will provide a direction to CDS with respect Over-Allotment Option shall be exercisable, in whole or in part, until the Over-Allotment Expiry Date. The Over-Allotment Option may be exercised by the Lead Underwriters, on behalf of the Underwriters, by delivery of written notice to the crediting REIT confirming the number of Over-Allotment Units in respect of which the Over-Allotment Option is being exercised. Upon exercise of the Debentures Over- Allotment Option, the REIT shall become obligated to issue and sell and the accounts Underwriters shall become severally obligated to purchase the total number of Over-Allotment Units as to which the Underwriters are exercising the Over- Allotment Option in accordance with their respective percentages set out in paragraph 12 hereof. The Over-Allotment Option closing time (the "Over- Allotment Closing Time") shall be determined by the Lead Underwriters on behalf of the participants Underwriters but, unless otherwise agreed between the Lead Underwriters and the REIT, shall not be earlier than three Business Days or later than five Business Days after the exercise of CDS as will the Over-Allotment Option and, in any event, shall not be designated by the Agents in writing in sufficient time prior to earlier than the Closing Date nor later than five Business Days after the Over-Allotment Expiry Date. If the Over-Allotment Option is exercised as to permit all or any portion of the Over- Allotment Units, certificates in definitive or global form (or at the election of the Lead Underwriters in book entry only form) for such creditingOver-Allotment Units and payment therefor, shall be delivered at the Over-Allotment Closing Time in the manner, and upon the terms and conditions, set forth in paragraphs 7.1, 7.2.1.9 and 7.4 except that reference therein to the Offered Units and Closing Time shall be deemed, for the purposes of this paragraph 7.4, to refer to such Over-Allotment Units and Over-Allotment Closing Time, respectively, and the amount payable by the Underwriters to the REIT in respect of the exercise of the Over-Allotment Option shall be equal to the number of Over-Allotment Units in respect of which the Over-Allotment Option is exercised multiplied by the Offering Price, less the applicable Underwriting Fee and the expenses of the Underwriters in connection with the Over-Allotment Option pursuant to paragraph 9. If the Over-Allotment Option is exercised, the obligations of the Underwriters to purchase the Over-Allotment Units shall be conditional on the delivery by the REIT of the certificate referred to in paragraph 7.2.1.4 as of the Over-Allotment Closing Time as if references therein to Closing Time were references to Over- Allotment Closing Time and such other certificates, opinions or other documents in form and substance satisfactory to the Underwriters as they may reasonably request. The obligation of the Underwriters to close the exercise of the Over-Allotment Option at the Over-Allotment Closing Time shall be conditional on the Underwriters not having previously terminated their obligations pursuant to paragraph 10 of this Agreement, with reference therein to "Closing Time" being deemed, for the purposes hereof, to refer to the Over-Allotment Closing Time.
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures provided for in this Agreement will shall be completed at the offices of BurnetFasken Xxxxxxxxx XxXxxxxx LLP, Xxxxxxxxx & Xxxxxx LLP in Calgary000 Xxx Xxxxxx, Alberta Xxxxx 0000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx at the Closing Time. The closing of the purchase and sale of the Additional Debentures provided for in the Over-Allotment Option, or to the extent the Over-Allotment Option is exercised, shall be completed at such other place as office at the Trust Parties and the Agents may agreeOption Closing Time.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the AgentsUnderwriters:
7.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the TrustREIT’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx counsel, Fasken Xxxxxxxxx DuMoulin LLP, in and from the Underwriters’ counsel, Torys LLP, with respect to all such form matters as the Agents Underwriters may reasonably request, including with respect to including, without limiting the following mattersgenerality of the foregoing:
7.2.1.1.1 (i) as to the due formation or incorporation, as applicablethe case may be, and valid existence of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power and authority of the Trust Parties REIT to carry out their its obligations under this Agreement and of the Trust to create, authorize create and issue the DebenturesDebentures and to issue the Debenture Units;
7.2.1.1.2 (ii) as to the authorized and issued capital of the Trust and each Guarantor and REIT;
(iii) that except as to disclosed in the Prospectus, the REIT is the registered ownership owner of such all of the issued capital for the Trust and outstanding shares or units of each Guarantorof its directly owned subsidiaries;
7.2.1.1.3 (iv) that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor Opinion Entities has all requisite power, power and capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement Prospectus and the Indentureany Amendments;
7.2.1.1.5 (v) that all necessary action has been taken by the Trust and the Guarantors, REIT to authorize the execution, execution and delivery and performance of each of the Base Prospectus and Preliminary Prospectus, the Prospectus Supplement, as applicable, and any Amendments, if applicable, and the filing of such documents under the Securities Laws and for in each of the Trust Qualifying Jurisdictions, to validly issue the Debentures to the AgentsUnderwriters and to validly issue the Debenture Units on terms set out in the Indenture, and to authorize the performance by the REIT of the Underwriting Agreement;
7.2.1.1. 6 (vi) that the Debentures have been validly created and issued and the Debenture Units have been validly authorized for issuance by the Trust REIT and, upon the Trust REIT receiving payment of the purchase price thereforfor such Debentures or upon the Debenture Units being issued, the Debentures will be validly issued outstanding as legal, valid and outstandingbinding obligations of the REIT, in the case of the Debentures, or as fully paid units of the REIT, in the case of the Debenture Units;
7.2.1.1.7 (vii) that the attributes of the Debentures and the Debenture Units are consistent in all material respects with the description thereof in the Supplemented Prospectus;
7.2.1.1. 8 (iviii) that none of (a) the execution and delivery of this Agreement and the Indenture; Material Contracts, (iib) the performance and compliance with the terms of this Agreement and the Indenture; and such Material Contracts, or (iiic) the issue and sale of the DebenturesDebentures and the issue of the Debenture Units, will not result results in any breach of, or be is in conflict with or constitute constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute constitutes a default under under, any of the terms, conditions or provisions of the constating documents, regulations, by-laws or resolutions of the boards or securityholders of any of the Trust REIT Entities or, to the actual knowledge of the specific lawyers of Fasken Xxxxxxxxx XxXxxxxx LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or any Guarantor or inquiry, of any agreement or instrument, including this Agreement and the IndentureTransaction Documents, in respect by which any of the Business by which the Trust or any Guarantor REIT Entities is bound;
7.2.1.1.9 (ix) that all necessary action has been taken by the Trust and the Guarantors REIT to authorize the execution, execution and delivery and performance of this Agreement and each of the Indenture, as applicableMaterial Contracts to which it is a party, and this Agreement and the Indenture have each such Material Contract to which it is a party has been duly executed and delivered by each of them, as applicable, the REIT and constitutes a legal, valid and binding obligation of each of them, as applicablethe REIT, enforceable in accordance with its terms, except as enforcement of this Agreement such Material Contracts may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are soughtsought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections paragraph 8 and 9 of this Agreement;
7.2.1.1.10 (x) confirming its opinions concerning tax matters in the Prospectus under the heading headings “Eligibility For for Investment” and under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement”;
7.2.1.1.11 confirming (xi) that the Debentures are not precluded Debenture Trustee has been duly appointed as investments the debenture trustee under the statutes listed under the heading “Eligibility For Investment” in the Prospectus SupplementIndenture;
7.2.1.1.12 (xii) that Valiant CIBC Mellon Trust Company at its principal office in Calgary Toronto has been duly appointed as the transfer agent and registrar for units of the DebenturesREIT;
7.2.1.1.13 (xiii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT under the Securities Laws to qualify the Debentures for distribution to the public in each such Qualifying Jurisdiction through registrants or dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 (xiv) that the form and terms of the definitive certificates representing the Debentures has units of the REIT have been duly approved and adopted by the Trust REIT;
(xv) that the Debentures and complies with the terms and conditions Debenture Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the Trust Indenture requirements of the Stock Exchange, and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently will be listed on the Exchanges and Stock Exchange effective at the outstanding Convertible Debentures are listed on Closing Time, in the TSXcase of the Debentures, or when issued, in the case of the Debenture Units; and
7.2.1.1.16 such (xvi) as to all other legal matters as reasonably requested by counsel to the Agents Underwriters relating to the distribution of the Debentures and Agents’ counsel may reasonably request; the Debenture Units, it being understood that such counsel may rely on: (i) on customary assumptions and qualifications, (ii) qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta Ontario or CanadaCanada and may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties REIT’s officers; and the other Guarantors;
7.2.1.2 an opinion of the AgentsUnderwriters’ counsel, which counsel may rely on the opinion of the TrustREIT’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the DebenturesREIT Entities;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 7.2.1.2 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the Trust PartiesREIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of this Agreement and the Indenture to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, thereto there has been no material change adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets, or in any current or intended business, affairs, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) ), capital or capital ownership of the Trust and REIT or the GuarantorsREIT Entities, taken as a whole, and which is not, or is not required by Securities Laws to be, from that disclosed in or contemplated by the Supplemented Prospectus, any Amendment, Prospectus or any Supplementary Material Amendment (including as they existed at the documents incorporated therein by referencetime of filing); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents Underwriters and the AgentsUnderwriters’ counsel may reasonably request;
7.2.1.5 7.2.1.3 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4;
7.2.1.6 certificates dated paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date, signed by appropriate officers ;
7.2.1.4 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Trust addressed Debentures and Debenture Units on the Stock Exchange subject only to the Agents and their counsel, with respect filing of documents within the times established by the Stock Exchange;
7.2.1.5 evidence satisfactory to the Trust IndentureUnderwriters that the REIT has authorized and approved this Agreement, all resolutions the issuance of the board of trustees of the Trust Debentures and other actions Debenture Units and all matters relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably requestthereto; and
7.2.1.7 7.2.1.6 one or more definitive certificates representing a document constituting the Debentures registered in the name of CDS Clearing and Depository Securities Limited& Co., or in such name or names as the Underwriters may direct, against payment to the TrustREIT, or as the Trust REIT may direct, of the Purchase Price in respect Price, less the full amount of the Debentures; Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;
7.2.2 7.2.3 the representations and warranties of the Trust Parties REIT contained herein being true and correct as of the Closing Time with the same force and effect as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable and as of the Closing Time after giving effect to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warningtransactions contemplated hereby;
7.2.4 the Trust Parties REIT having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents Underwriters not having previously terminated their obligations pursuant to Section 11 paragraph 10 of this Agreement.
7.3 It will shall be a condition precedent to the Trustobligations of the Underwriters to purchase the Additional Debentures, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in the form contemplated pursuant to subparagraph 7.2.1.2, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 one or more definitive certificates representing the applicable Additional Debentures registered as contemplated pursuant to subparagraph 7.2.1.6 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.6, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Debentures that:
7.3.1 7.4.1 the Trust will Underwriters shall have received funds from made or delivered, or caused to be made or delivered, to the Agents by REIT, or as the REIT may direct, a wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, Price payable by the Underwriters for the Debentures less an amount equal to the Agents’ Fee for such Debenturesfull amount of the Underwriting Fee;
7.3.2 7.4.2 the Agents will Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and;
7.3.3 7.4.3 no order will shall have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that which restricts in any manner the distribution of the Debentures;Debentures or the completion of the transactions contemplated by the Transaction Documents; and
7.4 The Agents will provide a direction to CDS with respect 7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the crediting REIT, acting reasonably and all of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time conditions therein have been fulfilled (or waived) prior to the Closing Date Time.
7.5 It shall be a condition precedent to permit the REIT’s obligations to issue the Additional Debentures that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Debentures less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such creditingpurpose being pending or threatened which restricts in any manner the distribution of the Additional Debentures or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate(s) representing the Debentures delivered pursuant to paragraph 7.2.1.6 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Debentures, or its agent, for definitive certificate(s) representing the Debentures in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Offered Shares provided for in this Agreement will shall be completed at the offices of BurnetFasken Xxxxxxxxx XxXxxxxx LLP, Xxxxxxxxx & Xxxxxx LLP in CalgaryBay Adelaide Centre, Alberta 000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X 0X0 at the Closing Time and the Option Closing Time, or at such other place as the Trust Parties and the Agents may agree.
7.2 applicable. The following are conditions precedent to the obligations of the Agents Underwriters to purchase the Offered Shares under this Agreement, which conditions the Trust Company covenants to use its reasonable best efforts to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the AgentsUnderwriters:
7.2.1 7.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 7.1.1 a favourable legal opinionsopinion and Rule 10b-5 negative assurance statement, dated the Closing DateDate from Xxxxx Xxxxxx & Xxxxxx LLP, from as U.S. counsel to the Trust’s counsel Company, addressed to the Agents Lead Underwriter and to XxXxxxxx Xxxxxxxx LLPCF US, in such form as the Agents may and substance reasonably request, including with respect satisfactory to the following matters:
7.2.1.1.1 as to the due formation or incorporationUnderwriters, as applicable, and valid existence of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties to carry out their obligations under this Agreement and of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 as to the authorized and issued capital of the Trust and each Guarantor and as to the registered ownership of such issued capital for the Trust and each Guarantor;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement and the Indenture;
7.2.1.1.5 that all necessary action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the Agents;
7.2.1.1. 6 that the Debentures have been validly authorized for issuance by the Trust and, upon the Trust receiving payment of the purchase price therefor, the Debentures will be validly issued and outstanding;
7.2.1.1.7 that the attributes of the Debentures are consistent in all material respects with the description thereof substantially in the Supplemented Prospectus;
7.2.1.1. 8 (i) the execution and delivery of this Agreement and the Indenture; (ii) the performance and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale of the Debenturesform mutually agreed, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust or any Guarantor is bound;
7.2.1.1.9 that all necessary action has been taken by the Trust and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided it being understood that such counsel may express no opinion rely, to the extent appropriate in the circumstances, as to the enforceability matters of fact, on certificates of public and stock exchange officials and certificates of the indemnity and contribution provisions directors or officers of Sections 8 and 9 of this Agreementthe Company;
7.2.1.1.10 confirming its opinions concerning tax matters under 7.1.2 a favourable legal opinion, dated the heading “Eligibility For Investment” Closing Date from Fasken Xxxxxxxxx DuMoulin LLP, as Canadian counsel to the Company, addressed to the Underwriters and under CF US and dated such delivery date, in form and substance reasonably satisfactory to the heading “Canadian Federal Income Tax Considerations” Lead Underwriter, substantially in the Prospectus Supplement;
7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filedform mutually agreed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust to qualify the Debentures for distribution to the public through registrants or dealers registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSX; and
7.2.1.1.16 such other matters as the Agents and Agents’ counsel may reasonably request; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) on the opinions of local counsel acceptable to them (or may arrange for the provision of such opinions directly to the Underwriters) as to matters governed by the laws of jurisdictions other than the Province Provinces of Ontario, British Columbia and Alberta or Canadaand may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of public and stock exchange officials and certificates of the directors or officers of the Trust Parties and the other GuarantorsCompany;
7.2.1.2 an opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, with respect to those matters as the Agents may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 7.1.3 a certificate or certificatescertificate, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer certifying on behalf either the chief executive officer or the chief financial officer of the Trust PartiesCompany, or such other officer of the Company as may be acceptable to the best of Lead Underwriter, acting reasonably, addressed to the knowledge, information Underwriters and belief of the persons signing such certificate, after having made reasonable inquiriesCF US certifying that:
(i) 7.1.3.1 the Trust Parties have Company has complied in all material respects with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied by the Company at or prior to the Closing Time;
7.1.3.2 the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (iior, as regards specific representations and warranties if qualified by materiality, in all respects) as at the Closing, with the same force and effect as if made on and as at the Closing Time, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties shall be true and correct in all material respects (or, as regards specific representations and warranties if qualified by materiality, in all respects), as of such date, after giving effect to the transactions contemplated by this Agreement;
7.1.3.3 as at the Closing Time, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces Common Shares has been issued and no proceedings for such purpose are pending or contemplated or or, to the best of the knowledge, information and belief of the declarantperson signing such certificate, are contemplated or threatened;
7.1.3.4 the U.S. Prospectus Supplements shall have been filed with the Commission in a timely fashion and no stop order or other order (A) suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, (B) suspending any Issuer Free Writing Prospectus, (C) suspending the U.S. Prospectuses, or (D) suspending the Canadian Prospectuses, has been issued, and no investigation, order, inquiry or proceeding for that purpose has been instituted, pending or, to their knowledge, is contemplated or threatened by the SEC or any state or regulatory body; and the SEC shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
7.1.3.5 that the person signing such certificate has examined the Registration Statement, the U.S. Prospectuses, the Canadian Prospectuses and the Pricing Disclosure Package, and in their opinion, (A) (i) the Registration Statement, as of the date it was declared effective by the Commission, (ii) the U.S. Prospectuses, as of their date and on the applicable delivery date, (iii) the Canadian Prospectuses, as of their date and on the applicable delivery date, and (iv) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the date the Registration Statement was declared effective by the Commission, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the U.S. Prospectuses, the Canadian Prospectuses or any Issuer Free Writing Prospectus that has not been so set forth; and
7.1.3.6 subsequent to the respective dates as of which information is given in the Supplemented Prospectus Registration Statement, the U.S. Prospectuses, the Canadian Prospectuses and the Pricing Disclosure Package, the Company has not incurred any Amendments theretomaterial liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Pricing Disclosure Package and in the Canadian Final Prospectus, there has not been no any change in the share capital, or any material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated short term or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendmentlong term debt, or any Supplementary Material issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company or any material adverse change or any development involving a prospective material adverse change (including whether or not arising in the ordinary course of business);
7.1.4 the lock-up agreements between the Lead Underwriter and the officers and directors of the Company set forth on Exhibit “A”, delivered to the Lead Underwriter on or before the date of this Agreement, shall be in full force and effect on such Delivery Date;
7.1.5 the Underwriters receiving, at the Closing Time, a certificate dated the Closing Date and signed by a senior officer of the Company as may be acceptable to the Underwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
7.1.5.1 the constating documents incorporated therein by reference)of the Company;
7.1.5.2 the resolutions of the directors of the Company relevant to the Offering, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(iv) 7.1.5.3 the representations incumbency and warranties signatures of signing officers for the Company;
7.1.6 the Underwriters receiving, at the Closing, certificates of status and/or compliance, where issuable under applicable law, for the Company and each of the Trust Parties contained herein are true and correct in all material respects as of Material Subsidiaries, dated within two (2) Business Days prior to the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably requestDate;
7.2.1.5 7.1.7 the comfort letter from the Auditors letters required to be delivered at the Closing Time times specified pursuant to Section 4.44.5;
7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed 7.1.8 evidence satisfactory to the Agents Lead Underwriter that the Company has authorized and their counselapproved this Agreement, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue issuance and sale of the Debentures, the incumbency Offered Shares and specimen signatures of signing officers and with respect to such other all matters as the Agents may reasonably request; andrelating thereto;
7.2.1.7 7.1.9 in book-entry form or one or more definitive certificates (or evidence of issuance in book-entry form or its equivalent in the non-certificated inventory system at the Company’s registrar and transfer agent) representing a document constituting the Debentures Offered Shares registered in the name of the CDS Clearing and & Co. or the Depository Securities LimitedTrust Company, as applicable, or in such name or names as the Lead Underwriter may direct, against payment to the TrustCompany, or as the Trust Company may direct, of the Purchase Price in respect aggregate purchase price of the Debentures; Offered Shares, less an amount equal to the full amount of the applicable Underwriting Fee, by wire transfer payable in Toronto, all in form and substance satisfactory to the Agents, Lead Underwriter acting reasonably;
7.2.2 7.1.10 the Canadian Prospectuses and any Amendments shall have been filed with the applicable Canadian Securities Regulators in each of the Qualifying Provinces in accordance with Canadian Securities Laws;
7.1.11 the U.S. Prospectus Supplements shall have been timely filed with the Commission in accordance with Section 3.9. The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the U.S. Prospectuses or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the U.S. Prospectuses or otherwise shall have been complied with;
7.1.12 evidence satisfactory to the Lead Underwriter of the approval of the listing and posting for trading on the Stock Exchanges of the Offered Shares, subject only to the satisfaction by the Company of any Standard Listing Conditions;
7.1.13 the representations and warranties of the Trust Parties Company contained herein being true and correct as of the Closing Time with the same force and effect as if such representations and warranties had been made at such timeand as of the Closing Time after giving effect to the transactions contemplated hereby;
7.2.3 confirmation in form acceptable to 7.1.14 the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 the Trust Parties Company having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 7.1.15 the Agents Underwriters not having previously terminated their obligations pursuant to Section 11 of this Agreement.
7.3 7.2 It will shall be a condition precedent to the TrustCompany’s obligations to issue the Debentures Offered Shares that:
7.3.1 7.2.1 the Trust will Underwriters shall have received funds from delivered or caused to be delivered to the Agents by Company a wire transfer payable in Toronto representing the Purchase Price, in Canadian dollarsGross Proceeds payable by the Underwriters for the Offered Shares, less an amount equal to the Agentsfull amount of the applicable Underwriting Fee and the Underwriters’ Fee for such Debenturesexpenses as contemplated by Section 10;
7.3.2 7.2.2 the Agents will Underwriters shall have complied in all material respects with the covenants and satisfied all terms and conditions to be complied with and satisfied by them it at or prior to the Closing TimeTime (which condition may be waived in writing, in whole or in part, by the Company); and
7.3.3 7.2.3 no order will shall have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that securities regulatory authority in any Qualifying Jurisdiction which restricts in any manner the distribution of the Debentures;
7.4 Offered Shares. The Agents will provide a direction to CDS with respect to Company shall make all necessary arrangements for the crediting exchange of the Debentures Offered Shares delivered pursuant to Section 7.1 hereof, on the accounts date of delivery, at the principal office in Toronto, Ontario of the participants duly appointed registrar and transfer agent for the Offered Shares, or its agent, for definitive certificates (or evidence of CDS issuance in book-entry form or its equivalent in the non-certificated inventory system) representing or documents constituting the Offered Shares in such amounts and registered in such names as will shall be designated by the Agents in writing in sufficient time by any Selling Firm not less than 24 hours prior to the Closing Date Time. All such exchanges are to permit be made without cost to the Selling Firms, other than any applicable transfer taxes.
7.3 On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such creditingfurther certificates and documents as the Lead Underwriter may reasonably request.
7.4 The documents delivered to the Underwriters pursuant to Sections 7.1.1, 7.1.2, 7.1.3, 7.1.4 and 7.1.5 shall also be addressed to the U.S. affiliates of the Underwriters, as applicable, or such documents shall explicitly allow the U.S. affiliates of the Underwriters to rely upon such documents.
Appears in 1 contract
Closing of the Offering. 7.1 (a) The closing of the purchase and sale of the Debentures provided for in this Agreement will be completed at the offices of Burnet, Xxxxxxxxx & Xxxxxx LLP in Calgary, Alberta at the Closing Time, or at such other place as the Trust Parties Corporation and the Agents Underwriters may agree.
7.2 (b) The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions (other than subparagraph 9(b)(i)(B)) the Trust Corporation covenants to fulfil fulfill within the times set out hereintherein, and which conditions may be waived in writing in whole or in part by the AgentsUnderwriters:
7.2.1 (i) receipt by the Agents Underwriters of the following documents:
7.2.1.1 (A) favourable legal opinions, dated the Closing Date, from the TrustCorporation’s counsel addressed to the Agents Underwriters and to XxXxxxxx Xxxxxxxx LLP, in such form as the Agents Underwriters may reasonably request, including with respect to the following matters:
7.2.1.1.1 (I) as to the due formation or incorporation, as applicable, and valid existence of the Trust Corporation and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties Corporation to carry out their its obligations under this Agreement and of the Trust to create, authorize and issue the Debentures;
7.2.1.1.2 (II) as to the authorized and issued capital of the Trust Corporation and each Guarantor and as to the registered ownership of such issued capital for the Trust Corporation and each Guarantor;
7.2.1.1.3 (III) that the Trust Corporation is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities LawsJurisdictions;
7.2.1.1.4 (IV) that the Trust Corporation and each Guarantor has all requisite power, capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets assets, as applicable, and to carry out the transactions contemplated by the Supplemented Base Prospectus, the Prospectus Supplement, any Supplementary Material, this Agreement and the Indenture;
7.2.1.1.5 (V) that all necessary action has been taken by the Trust Corporation and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust Guarantors to validly issue the Debentures to the AgentsUnderwriters;
7.2.1.1. 6 (VI) that the Debentures have been validly authorized for issuance by the Trust Corporation and, upon the Trust Corporation receiving payment of the purchase price therefor, the Debentures will be validly issued and outstanding;
7.2.1.1.7 (VII) that the attributes of the Debentures are consistent in all material respects with the description thereof in the Supplemented Base Prospectus, the Prospectus Supplement and any Supplementary Material;
7.2.1.1. 8 (VIII) (i) the execution and delivery of this Agreement and the Indenture; (ii) the performance and compliance with the terms of this Agreement and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any breach of, or be in conflict with or constitute a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute a default under any of the terms, conditions or provisions of the constating documents, by-laws or resolutions of the boards or securityholders of the Trust Corporation or any Guarantor or of any agreement or instrument, including this Agreement and the Indenture, in respect of the Business by which the Trust Corporation or any Guarantor is bound;
7.2.1.1.9 (IX) that all necessary action has been taken by the Trust Corporation and the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections 8 10 and 9 11 of this Agreement;
7.2.1.1.10 (X) confirming its opinions opinion concerning tax matters under the heading “Eligibility For Investment” and under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement;
7.2.1.1.11 confirming that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 (XI) that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust to qualify the Debentures for distribution to the public through registrants or dealers registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 (XII) that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust Corporation and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 (XIII) that the Trust Units Common Shares are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSXExchanges; and
7.2.1.1.16 (XIV) such other matters as the Agents Underwriters and AgentsUnderwriters’ counsel may reasonably request; it being understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta or Canada, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties Corporation and the other Guarantors;
7.2.1.2 (B) an opinion of the AgentsUnderwriters’ counsel, which may rely on the opinion of the TrustCorporation’s counsel as to matters which specifically relate to the Trust Parties Corporation or the other Guarantors, dated the Closing Date, in form and substance satisfactory to the AgentsUnderwriters, acting reasonably, with respect to those matters as the Agents Underwriters may reasonably request relating to the distribution of the Debentures;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 (C) a certificate or certificates, dated the date of delivery and signed by Baytexthe Corporation’s interim President and Chief Executive Officer and Chief Financial Officer certifying on behalf of the Trust PartiesCorporation, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(iI) the Trust Parties have Corporation has complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(iiII) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust Corporation in any of the Qualifying Provinces Jurisdictions has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iiiIII) since the date of the Supplemented Prospectus Supplement and any Amendments Supplementary Material thereto, there has been no material change in the business, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust Corporation and the Guarantors, taken as a whole, and which is not, or is not required by Securities Laws to be, disclosed in or contemplated by the Supplemented Prospectus, any Amendment, Prospectus Supplement or any Supplementary Material (including the documents incorporated therein by reference); and
(ivIV) the representations and warranties of the Trust Parties Corporation contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); , and
(viV) as to such other matters of a factual nature as the Agents Underwriters and the AgentsUnderwriters’ counsel may reasonably request;
7.2.1.5 (D) the bring-down comfort letter from the Auditors required to be delivered at Auditors, dated the date of the Closing Time pursuant Date, and addressed to Section 4.4the Underwriters and the directors of the Corporation, in form and substance satisfactory to the Underwriters, acting reasonably, relating to the verification of the Financial Information and such other information as the Underwriters or their counsel will reasonably request (including, without limitation, financial information, statistical information derived from accounting records and accounting data) contained in the Base Prospectus, the Prospectus Supplement and any Supplementary Material, as the case may be, and matters involving changes or developments since the respective dates of which the Financial Information is given to a date not more than two Business Days prior to the date of such letter, which letter will be in addition to the Auditors’ consent in the Prospectus Supplement or any Supplementary Material;
7.2.1.6 (E) certificates dated the Closing Date, signed by appropriate officers of the Trust Corporation addressed to the Agents Underwriters and their counsel, with respect to the Trust Indentureconstating documents of the Corporation, all resolutions of the board of trustees directors of the Trust Corporation relating to the Offering and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents Underwriters may reasonably request; and
7.2.1.7 (F) one or more definitive certificates representing the Debentures registered in the name of CDS Clearing and Depository Securities LimitedCDS, against payment to the TrustCorporation, or as the Trust Corporation may direct, of the Purchase Price purchase price in respect of the Debentures; all in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;
7.2.2 (c) the representations and warranties of the Trust Parties Corporation contained herein being true and correct as of the Closing Time as if such representations and warranties had been made at such time;
7.2.3 (d) confirmation in form acceptable to the Agents Underwriters that the Debentures have received a rating, with no change in outlook, from (i) Moody’s Xxxxx’x Investor Service Inc. of B3/stableat least B1, and (ii) S&P Standard and Poor’s Rating Services, a division of B/stableXxXxxx-Xxxx Companies (Canada) Corporation of at least BB-, and have not been placed on a credit watch or a comparable downgrade warning;
7.2.4 (e) the Trust Parties Corporation having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 (f) the Agents Underwriters not having previously terminated their its obligations pursuant to Section 11 13 of this Agreement.
7.3 (g) It will be a condition precedent to the TrustCorporation’s obligations to issue the Debentures that:
7.3.1 (i) the Trust Corporation will have received funds from the Agents Underwriters by wire transfer payable in Toronto representing the Purchase Priceaggregate principal amount, in Canadian dollars, less an amount equal to the Agents’ Underwriting Fee for such Debentures;
7.3.2 (ii) the Agents Underwriters will have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them it at or prior to the Closing Time; and
7.3.3 (iii) no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;
7.4 (h) The Agents Underwriters will provide a direction to CDS with respect to the crediting of the Debentures to the accounts of the participants of CDS as will be designated by the Agents Underwriters in writing in sufficient time prior to the Closing Date to permit such crediting.
Appears in 1 contract
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Units provided for in this Agreement will shall be completed at the offices of BurnetFasken Xxxxxxxxx XxXxxxxx LLP, Xxxxxxxxx & Xxxxxx LLP in Calgary000 Xxx Xxxxxx, Alberta Xxxxx 0000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx at the Closing Time. The closing of the purchase and sale of the Additional Units provided for in the Over-Allotment Option, or to the extent the Over-Allotment Option is exercised, shall be completed at such other place as office at the Trust Parties and the Agents may agreeOption Closing Time.
7.2 The following are conditions precedent to the obligations of the Agents Underwriters under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by TD Securities, on behalf of the AgentsUnderwriters:
7.2.1 receipt by the Agents Underwriters of the following documents:
7.2.1.1 favourable legal opinions, dated the Closing Date, from the TrustREIT’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx counsel, Fasken Xxxxxxxxx DuMoulin LLP, in and from the Underwriters’ counsel, Torys LLP, with respect to all such form matters as the Agents Underwriters may reasonably request, including with respect to including, without limiting the following mattersgenerality of the foregoing:
7.2.1.1.1 (i) as to the due formation or incorporation, as applicablethe case may be, and valid existence of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, of each of the REIT Entities that are shown in the chart contained in the section of the AIF entitled “Structure of the REIT” (the “Opinion Entities”) and as to the adequacy of the power and authority of the Trust Parties REIT to carry out their its obligations under this Agreement and of the Trust to create, authorize and issue the DebenturesUnits;
7.2.1.1.2 (ii) as to the authorized and issued capital of the Trust and each Guarantor and REIT;
(iii) that except as to disclosed in the Prospectus, the REIT is the registered ownership owner of such all of the issued capital for the Trust and outstanding shares or units of each Guarantorof its directly owned subsidiaries;
7.2.1.1.3 (iv) that the Trust is a reporting issuer (or the equivalent) in good standing in each of the Qualifying Jurisdictions under Securities Laws;
7.2.1.1.4 that the Trust and each Guarantor Opinion Entities has all requisite power, power and capacity and authority under the laws of its jurisdiction of formation or incorporation, as the case may be, and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, to own or lease its properties and assets and to carry out the transactions contemplated by the Supplemented Prospectus, this Agreement Prospectus and the Indentureany Amendments;
7.2.1.1.5 (v) that all necessary action has been taken by the Trust and the Guarantors, REIT to authorize the execution, execution and delivery and performance of each of the Base Prospectus and Preliminary Prospectus, the Prospectus Supplement, as applicable, and any Amendments, if applicable, and the filing of such documents under the Securities Laws and for in each of the Trust Qualifying Jurisdictions, to validly issue the Debentures Units to the AgentsUnderwriters, and to authorize the performance by the REIT of this Agreement;
7.2.1.1. 6 (vi) that the Debentures Units have been validly authorized for issuance by the Trust issued and, upon the Trust REIT receiving payment of the purchase price thereforfor such Units, the Debentures will be validly issued and outstandingoutstanding as fully paid units of the REIT;
7.2.1.1.7 (vii) that the attributes of the Debentures Units are consistent in all material respects with the description thereof in the Supplemented Prospectus;
7.2.1.1. 8 (iviii) that none of (a) the execution and delivery of this Agreement and the Indenture; Agreement, (iib) the performance and compliance with the terms of this Agreement and the Indenture; and Agreement, or (iiic) the issue and sale of the Debentures, will not result Units results in any breach of, or be is in conflict with or constitute constitutes a default under or create a state of facts (whether after notice or lapse of time or both) which would constitute constitutes a default under under, any of the terms, conditions or provisions of the constating documents, by-regulations, by laws or resolutions of the boards or securityholders of any of the Trust REIT Entities or, to the actual knowledge of the specific lawyers of Fasken Xxxxxxxxx XxXxxxxx LLP located in the Toronto office having involvement in the preparation of the Prospectus and without having undertaken any investigation or any Guarantor or inquiry, of any agreement or instrument, including this Agreement and the IndentureTransaction Documents, in respect by which any of the Business by which the Trust or any Guarantor REIT Entities is bound;
7.2.1.1.9 (ix) that all necessary action has been taken by the Trust and the Guarantors REIT to authorize the execution, execution and delivery and performance of this Agreement and the Indenture, as applicableAgreement, and this Agreement and the Indenture have has been duly executed and delivered by each of them, as applicable, the REIT and constitutes a legal, valid and binding obligation of each of them, as applicablethe REIT, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are soughtsought and subject to other customary qualifications; provided that such counsel may express no opinion as to the enforceability of the indemnity and contribution provisions of Sections paragraph 8 and 9 of this Agreement;
7.2.1.1.10 (x) confirming its opinions concerning tax matters in the Prospectus under the heading headings “Eligibility For for Investment” and under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement”;
7.2.1.1.11 confirming (xi) that the Debentures are not precluded as investments under the statutes listed under the heading “Eligibility For Investment” in the Prospectus Supplement;
7.2.1.1.12 that Valiant CIBC Mellon Trust Company at its principal office in Calgary Toronto has been duly appointed as the transfer agent and registrar for units of the DebenturesREIT;
7.2.1.1.13 (xii) that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT under the Securities Laws to qualify the Debentures Units for distribution to the public in each such Qualifying Jurisdiction through registrants or dealers duly and properly registered under the applicable legislation of such Qualifying Jurisdiction who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 (xiii) that the form and terms of the definitive certificates representing the Debentures has units of the REIT have been duly approved and adopted by the Trust and complies with REIT;
(xiv) that the terms and conditions Units have been conditionally approved for listing by the Stock Exchange, subject to the REIT fulfilling all of the Trust Indenture requirements of the Stock Exchange, and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently will be listed on the Exchanges and Stock Exchange effective at the outstanding Convertible Debentures are listed on the TSXClosing Time; and
7.2.1.1.16 such (xv) as to all other legal matters as reasonably requested by counsel to the Agents and Agents’ counsel may reasonably request; Underwriters relating to the distribution of the Units, it being understood that such counsel may rely on: (i) on customary assumptions and qualifications, (ii) qualifications and on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than the Province of Alberta Ontario or CanadaCanada and may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Trust Parties REIT’s officers; and the other Guarantors;
7.2.1.2 an opinion of the AgentsUnderwriters’ counsel, which counsel may rely on the opinion of the TrustREIT’s counsel as to matters which specifically relate to the Trust Parties or REIT Entities;
7.2.1.2 in the other Guarantorsevent that a United States Purchaser has agreed to purchase Units, a favourable legal opinion, dated as of the date on which the Closing DateTime occurs, from Xxxxxx & Xxxxxxx LLP, special United States counsel, that the offer and sale of Units in form the United States does not require registration under the United States Securities Act of 1933, as amended, provided that such offer and substance satisfactory to sale of Units in the Agents, acting reasonably, United States is made in accordance with respect to those matters the terms as the Agents may reasonably request relating to the distribution of the Debenturesset out in Schedule A hereto;
7.2.1.3 an opinion of the Trust’s local counsel in Québec, dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonably, as to compliance of the Base Prospectus and the Prospectus Supplement and any Amendments, if applicable, with the laws of the Province of Québec relating to the use of the French language;
7.2.1.4 a certificate or certificates, dated the date of delivery and signed by Baytex’s President and Chief Executive Officer and Chief Financial Officer the chief executive officer and/or the chief financial officer of the REIT, or such other officers of the REIT as may be acceptable to the Underwriters, certifying on behalf of the Trust PartiesREIT and without personal liability:
(i) that the REIT has complied with all terms and conditions of this Agreement to be complied with by the REIT at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of such time;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in units of the REIT has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, are contemplated or threatened;
(iv) that to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iii) since the date of the Supplemented Prospectus and any Amendments thereto, thereto there has been no material change adverse change, financial or otherwise, to such date in the operating, financial or physical condition of the Assets, or in any current or intended business, affairs, operations, assets, prospects, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) ), capital or capital ownership of the Trust and REIT or the GuarantorsREIT Entities, taken as a whole, and which is not, or is not required by Securities Laws to be, from that disclosed in or contemplated by the Supplemented Prospectus, any Amendment, Prospectus or any Supplementary Material Amendment (including as they existed at the documents incorporated therein by referencetime of filing); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that the Trust has satisfied certain factual requirements in connection with the qualification of the Trust as a “unit trust” and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents Underwriters and the AgentsUnderwriters’ counsel may reasonably request;
7.2.1.5 7.2.1.4 the comfort letter from the Auditors required to be delivered at the Closing Time pursuant to Section 4.4paragraph 4.4 and “brought down” to within 2 Business Days of the Closing Date;
7.2.1.5 evidence satisfactory to the Underwriters that the REIT has obtained all necessary approvals for the listing of the Units on the Stock Exchange subject only to the filing of documents within the times established by the Stock Exchange;
7.2.1.6 certificates dated evidence satisfactory to the Closing DateUnderwriters that the REIT has authorized and approved this Agreement, signed by appropriate officers the issuance of the Trust addressed to the Agents Units and their counsel, with respect to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions matters relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably requestthereto; and
7.2.1.7 one or more definitive certificates representing a document constituting the Debentures Units registered in the name of CDS Clearing and Depository Securities Limited& Co., or in such name or names as the Underwriters may direct, against payment to the TrustREIT, or as the Trust REIT may direct, of the Purchase Price in respect Price, less the full amount of the Debentures; Underwriting Fee payable to the Underwriters, by wire transfer, all in form and substance reasonably satisfactory to the Underwriters;
7.2.2 the Transaction Documents being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the AgentsUnderwriters, acting reasonably;
7.2.2 7.2.3 the representations and warranties of the Trust Parties REIT contained herein being true and correct as of the Closing Time with the same force and effect as if such representations and warranties had been made at such time;
7.2.3 confirmation in form acceptable and as of the Closing Time after giving effect to the Agents that the Debentures have received a rating, with no change in outlook, from (i) Moody’s of B3/stable, and (ii) S&P of B/stable, and have not been placed on a credit watch or a comparable downgrade warningtransactions contemplated hereby;
7.2.4 the Trust Parties REIT having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time; and
7.2.5 the Agents Underwriters not having previously terminated their obligations pursuant to Section 11 paragraph 10 of this Agreement.
7.3 It will shall be a condition precedent to the Trustobligations of the Underwriters to purchase the Additional Units, if any, that:
7.3.1 the Underwriters shall have received a certificate dated the date of the Option Closing Date in form contemplated pursuant to subparagraph 7.2.1.3, with reference therein to “Closing Time” being to “Option Closing Time”;
7.3.2 a comfort letter from the Auditors contemplated pursuant to paragraph 4.4 “brought down” to within two Business Days of the Option Closing Date; and
7.3.3 a definitive certificate representing the applicable Additional Units registered as contemplated pursuant to subparagraph 7.2.1.7 against payment of the Additional Purchase Price therefor as contemplated pursuant to subparagraph 7.2.1.7, all in form and substance satisfactory to the Underwriters, acting reasonably; and
7.3.4 the conditions in subparagraphs 7.2.3, 7.2.4 and 7.2.5 shall be complied with or satisfied, with reference therein to “Closing Time” being to “Option Closing Time”.
7.4 It shall be a condition precedent to the REIT’s obligations to issue the Debentures Units that:
7.3.1 7.4.1 the Trust will Underwriters shall have received funds from made or delivered, or caused to be made or delivered, to the Agents by REIT, or as the REIT may direct, a wire transfer payable in Toronto representing the Purchase Price, in Canadian dollars, Price payable by the Underwriters for the Units less an amount equal to the Agents’ Fee for such Debenturesfull amount of the Underwriting Fee;
7.3.2 7.4.2 the Agents will Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Closing Time; and;
7.3.3 7.4.3 no order will shall have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that which restricts in any manner the distribution of the Debentures;Units or the completion of the transactions contemplated by the Transaction Documents; and
7.4 The Agents will provide a direction to CDS with respect 7.4.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Closing Time in form and substance satisfactory to the crediting REIT, acting reasonably and all of the Debentures to the accounts of the participants of CDS as will be designated by the Agents in writing in sufficient time conditions therein have been fulfilled (or waived) prior to the Closing Date Time.
7.5 It shall be a condition precedent to permit the REIT’s obligations to issue the Additional Units that:
7.5.1 the Underwriters shall have made or delivered, or caused to be made or delivered, to the REIT, or as the REIT may direct, a wire transfer representing the Additional Purchase Price payable by the Underwriters for the Additional Units less an amount equal to the full amount of the applicable Underwriting Fee;
7.5.2 the Underwriters shall have complied with the covenants and satisfied all terms and conditions to be complied with and satisfied by them at or prior to the Option Closing Time;
7.5.3 no order shall have been made and no proceedings for such creditingpurpose being pending or threatened which restricts in any manner the distribution of the Additional Units or the completion of the transactions contemplated by the Transaction Documents; and
7.5.4 the Transaction Documents and any other agreements reasonably required by the REIT being executed by the parties thereto on or before the Option Closing Time in form and substance satisfactory to the REIT, acting reasonably and all of the conditions therein have been fulfilled (or waived) prior to the Option Closing Time.
7.6 The REIT shall make all necessary arrangements for the exchange of the definitive certificate representing the Units delivered pursuant to paragraph 7.2.1.7 hereof, on the date of delivery, at the principal office in Toronto of the duly appointed registrar and transfer agent for the Units, or its agent, for definitive certificates representing the Units in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 72 hours prior to the Closing Time or the Option Closing Time, as the case may be. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
Appears in 1 contract
Samples: Underwriting Agreement
Closing of the Offering. 7.1 The closing of the purchase and sale of the Debentures Initial Units provided for in this Agreement will shall be completed at the offices of BurnetXxxxx Xxxxxx LLP, Xxxxxxxxx & Xxxxxx LLP in Calgary800 – 000 Xxxx Xxxxxxx Xxxxxx, Alberta Xxxxxxxxx, Xxxxxxx Xxxxxxxx at the Closing Time, or at such other place as the Trust Parties and the Agents may agree.
7.2 The following are conditions precedent to the obligations of the Agents under this Agreement, which conditions the Trust covenants to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the Lead Agents on behalf of the Agents:
7.2.1 receipt by the Agents of the following documents:
7.2.1.1 a favourable legal opinionsopinion, dated the Closing Date, from the Trust’s counsel addressed to the Agents and to XxXxxxxx Xxxxxxxx REIT LP's counsel, Xxxxx Xxxxxx LLP, in with respect to all such form matters as the Agents may reasonably request, including with respect to including, without limiting the following mattersgenerality of the foregoing:
7.2.1.1.1 as to the due formation or incorporationcreation, as applicableauthorization, issue and valid existence sale of the Trust and each Guarantor under the laws of its jurisdiction of formation or incorporation, as the case may be, and as to the adequacy of the power and authority of the Trust Parties to carry out their obligations under this Agreement and of the Trust to create, authorize and issue the DebenturesOffered Units;
7.2.1.1.2 as to that, upon the authorized and issued capital REIT receiving payment of the Trust and each Guarantor and as to the registered ownership of such issued capital purchase price for the Trust Offered Units, the Offered Units will be outstanding as fully paid and each Guarantornon- assessable units of the REIT LP;
7.2.1.1.3 that the Trust is a reporting issuer (or the equivalent) in good standing in each attributes of the Qualifying Jurisdictions under Securities LawsUnits and Class B Units are consistent in all material respects with the descriptions thereof in the Prospectus and comply with the REIT LP Agreement, applicable Law and Stock Exchange rules;
7.2.1.1.4 that the Trust creation and each Guarantor has all requisite power, capacity and authority existence of the REIT LP as a limited partnership under the laws of the Province of Ontario, its jurisdiction of formation or incorporation, as the case may be, power and all other jurisdictions where it carries on a material part of its business or owns any material property to carry on its business, capacity to own or and lease its properties property and assets and carry on business as described in the Prospectus and its ability to carry out execute, deliver and perform its obligations under the transactions contemplated by the Supplemented Prospectus, this Agreement and the IndentureMaterial Agreements;
7.2.1.1.5 that all necessary partnership action has been taken by the Trust and the Guarantors, to authorize the execution, delivery and performance of each of the Base Prospectus and Material Agreements to which the Prospectus Supplement, as applicable, and any Amendments, if applicable, the filing of such documents under Securities Laws and for the Trust to validly issue the Debentures to the AgentsREIT LP is a party;
7.2.1.1. 6 7.2.1.1.6 that the Debentures have been validly authorized for issuance by the Trust and, upon the Trust receiving payment of the purchase price therefor, the Debentures will be validly issued and outstanding;
7.2.1.1.7 that the attributes of the Debentures are consistent in all material respects with the description thereof in the Supplemented Prospectus;
7.2.1.1. 8 (i) the execution and delivery of this Agreement and each of the Indenture; (ii) Material Agreements by the performance and compliance with REIT LP, the fulfillment of the terms of this Agreement thereof by the REIT LP does not and the Indenture; and (iii) the issue and sale of the Debentures, will not result in any a breach of, of or be in conflict with or constitute a default under or under, and do not and will not create a state of facts (whether which, after notice or lapse of time or both) which would constitute , will result in a breach of or a default under under, and do not and will not conflict with any of the terms, conditions or provisions of the constating documents, by-laws or organizational documents or resolutions of the boards securityholders, partners or securityholders directors (as applicable), or any committee of partners or directors (as applicable) of the Trust REIT LP or, to the knowledge of such counsel, any judgment, decree, order or any Guarantor or award of any agreement court, arbitrator or instrument, including this Agreement and Governmental Authority having jurisdiction over the Indenture, in respect REIT LP;
7.2.1.1.7 the attributes of the Business securities of the other Material REIT Entities, to the extent described in the Prospectus, are consistent in all material respects with such description;
7.2.1.1.8 that the Offered Units have been conditionally approved for listing by which the Trust or any Guarantor is boundStock Exchange, subject to the fulfillment of the Standard Listing Conditions;
7.2.1.1.9 that all necessary action has been taken by the appointment of Computershare Trust Company of Canada as registrar and transfer agent of the Guarantors to authorize the execution, delivery and performance of this Agreement and the Indenture, as applicable, and this Agreement and the Indenture have been duly executed and delivered by each of them, as applicable, and constitutes a legal, valid and binding obligation of each of them, as applicable, enforceable in accordance with its terms, except as enforcement of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought; provided that such counsel may express no opinion as to Units;
7.2.1.1.10 the enforceability of the indemnity and contribution provisions of Sections 8 and 9 of this Agreement;
7.2.1.1.10 confirming its opinions concerning tax matters under the heading “Eligibility For Investment” and under the heading “Canadian Federal Income Tax Considerations” in the Prospectus SupplementMaterial Agreements to which a REIT Entity is a party;
7.2.1.1.11 confirming that the Debentures are not precluded qualification of the Offered Units as investments under the statutes listed under the heading “"Eligibility For for Investment” " in the Prospectus SupplementProspectus, subject to the qualifications, assumptions, limitations and understandings set out therein;
7.2.1.1.12 that Valiant Trust Company at its principal office in Calgary has been duly appointed as the transfer agent and registrar for the Debentures;
7.2.1.1.13 that all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by the Trust REIT LP to qualify the Debentures Offered Units for distribution and sale to the public in each of the Qualifying Jurisdictions through registrants investment dealers or dealers brokers registered under the applicable legislation laws of such the Qualifying Jurisdiction Jurisdictions who have complied with the relevant provisions of such applicable legislation;
7.2.1.1.14 that the form and terms of the definitive certificates representing the Debentures has been approved and adopted by the Trust and complies with the terms and conditions of the Trust Indenture and all legal requirements applicable thereto;
7.2.1.1.15 that the Trust Units are currently listed on the Exchanges and the outstanding Convertible Debentures are listed on the TSXlaws; and
7.2.1.1.16 7.2.1.1.13 such other matters as opinions which may be reasonably requested by the Agents and Agents’ counsel may reasonably request; their counsel, it being is understood that such counsel may rely on: (i) customary assumptions and qualifications, (ii) on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Alberta or CanadaBritish Columbia and may rely, and (iii) to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of officers an officer of the Trust Parties REIT LP or other responsible persons in a position to have knowledge of such facts and the other Guarantorstheir accuracy and may be entitled to make customary assumptions and qualifications;
7.2.1.2 an opinion of the Agents’ counsel, which may rely on the opinion of the Trust’s counsel as to matters which specifically relate to the Trust Parties or the other Guarantorsa favourable legal opinion, dated the Closing Date, from the REIT LP’s counsel, Xxxxx Xxxxxx LLP, that each applicable Material REIT Entity (or each property operated thereby, as applicable) is duly registered, licensed or qualified, and has all necessary licences, permits, agreements or other authorizations of applicable Governmental Authorities, in form respect of the ownership and substance satisfactory operation of the Initial Properties as contemplated by the Prospectus by the applicable REIT Entity and that the same will not be affected by the Offering and the other transactions contemplated herein or in the Prospectus; it is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of British Columbia and may rely, to the Agentsextent appropriate in the circumstances, acting reasonablyas to matters of fact, with respect to those matters as the Agents may reasonably request relating to the distribution on certificates of an officer of the DebenturesREIT LP or other responsible persons in a position to have knowledge of such facts and their accuracy and may be entitled to make customary assumptions and qualifications;
7.2.1.3 an a favourable legal opinion of counsel to each Material REIT Entity (other than the Trust’s local counsel in QuébecREIT LP), dated the Closing Date and acceptable in form and substance to the Agents’ counsel, acting reasonablyDate, as to compliance its authorized and issued capital and registered owner(s) thereof, that each of them is subsisting under the laws of its applicable jurisdiction of incorporation or formation, as applicable, that, as applicable, it has the power and legal capacity to own the Initial Properties and conduct its business as described in the Prospectus; that the execution and delivery of each of the Base Prospectus Material Agreements by the Material REIT Entity, the fulfillment of the terms thereof by each of the Material REIT Entities do not and will not result in a breach of or a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with any of the Prospectus Supplement and terms, conditions or provisions of the constating or organizational documents or resolutions of the securityholders, partners or directors (as applicable), or any Amendmentscommittee of partners or directors (as applicable) of any Material REIT Entity or associates or, to the knowledge of such counsel, any judgment, decree, order or award of any court, arbitrator or Governmental Authority having jurisdiction over any Material REIT Entity; and, if applicable, that each of the Material Agreements to which it is a party has been duly authorized, executed and delivered and constitutes a legal, valid and binding obligation of such party thereto, enforceable in accordance with its terms; it is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Province of Québec relating British Columbia and may rely, to the use extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the French languageapplicable REIT Entity or other responsible persons in a position to have knowledge of such facts and their accuracy and may be entitled to make customary assumptions and qualifications;
7.2.1.4 a commitment to provide title insurance in respect each of the Initial Properties, in a form acceptable to the Agents and their counsel delivered in favour of the applicable REIT Entity;
7.2.1.5 a certificate or certificates, dated the date of delivery Closing Date and signed by Baytex’s President the chief executive officer and Chief Executive Officer the chief financial officer of each of the Governing GP and Chief Financial Officer the Managing GP or such other officers of the Governing GP and the Managing GP as may be acceptable to the Agents, certifying on behalf of the Trust PartiesREIT LP, the Managing GP and the Governing GP, each without personal liability:
(i) that each of the REIT LP and Managing GP has complied with all terms and conditions of this Agreement to be complied with thereby at or prior to the Closing Time;
(ii) that the representations and warranties of the REIT LP and Managing GP contained herein are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(iii) that no order, ruling or determination having the effect of ceasing or suspending trading in the Offered Units or Units has been issued and no proceedings for such purpose are pending or, to the best of the knowledge, information and belief of the persons signing such certificate, after having made reasonable inquiries:
(i) the Trust Parties have complied with all covenants and satisfied all terms and conditions of this Agreement and the Trust Indenture, as applicable, on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Trust in any of the Qualifying Provinces has been issued and no proceedings for such purpose are pending or contemplated or to the best of the knowledge, information and belief of the declarant, threatened;
(iiiiv) since the date respective dates of the Supplemented Prospectus and any Amendments thereto, Amendment there has been no material change adverse change, financial or otherwise, in the business, affairs, operations, assets, prospectsliabilities (contingent or otherwise), capital or prospects of the REIT Entities (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (actual, anticipated, contemplated or threatened, contingent or otherwise) or capital of the Trust and the Guarantors, REIT Entities (taken as a whole), and which is not, or is not required by Securities Laws to be, from that disclosed in the Prospectus or contemplated by the Supplemented Prospectus, any Amendment, or any Supplementary Material as the case may be (including as they existed at the documents incorporated therein by referencetime of filing); and
(iv) the representations and warranties of the Trust Parties contained herein are true and correct in all material respects as of the Closing Time as if made at and as of the Closing Time,
(v) that since the Trust date of this Agreement, no transaction or agreement has satisfied certain factual requirements in connection with been entered into by any REIT Entity which is material to the qualification of the Trust REIT Entities (taken as a “unit trust” whole) other than as described in the Prospectus or any Amendment, and “mutual fund trust” for purposes of the Income Tax Act (Canada); and
(vi) as to such other matters of a factual nature as the Agents and the Agents’ counsel may reasonably requeststatements shall be true in fact;
7.2.1.5 7.2.1.6 the comfort letter letters from the Auditors Auditor required to be delivered at the Closing Time pursuant to Section 4.4paragraph 4.3;
7.2.1.6 certificates dated the Closing Date, signed by appropriate officers of the Trust addressed 7.2.1.7 evidence satisfactory to the Agents and their counsel, with respect that the REIT LP has obtained all necessary approvals for the listing of the Offered Units on the Stock Exchange subject only to the Trust Indenture, all resolutions of the board of trustees of the Trust and other actions relating to this Agreement and to the creation, allotment, issue and sale of the Debentures, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Agents may reasonably request; andStandard Listing Conditions;
7.2.1.7 7.2.1.8 one or more definitive global certificates representing the Debentures Initial Units registered in the name of CDS Clearing & Co. or its nominee, or in such name or names as the Lead Agents may direct (or its equivalent in the non-certificated inventory system of the REIT LP's registrar and Depository Securities Limitedtransfer agent), against payment to the TrustREIT LP, or as the Trust REIT LP may direct, of the Purchase Price in respect gross proceeds of the DebenturesOffering net of the Agency Fee and the expenses of the Offering payable pursuant to paragraph 9 hereof by wire transfer payable in Vancouver; and
7.2.1.9 any other certificates, documents, comfort letters or opinions in connection with any matter related to the Offering which are reasonably requested by the Agents or their counsel, all in form and substance satisfactory to the Agents, acting reasonably;
7.2.2 the representations Material Agreements shall have been executed and warranties of delivered by the Trust Parties contained herein being true and correct as of parties thereto on or before the Closing Time as if such representations in form and warranties had been made at such timesubstance satisfactory to the Agents, acting reasonably;
7.2.3 confirmation in form acceptable any condition precedent to the Agents that completion of the Debentures transactions contemplated by the Material Agreements in favour of any REIT Entity shall have received a ratingbeen fulfilled, with no change in outlookperformed or waived by the REIT LP to the satisfaction of the Agents, from (i) Moody’s of B3/stableacting reasonably, and (ii) S&P each of B/stable, and the transactions contemplated by the Material Agreements to occur concurrently or immediately following the Closing Time shall have not been placed on a credit watch completed or a comparable downgrade warningthe Agents shall be satisfied that such transactions will be completed concurrently with or immediately following the Closing Time;
7.2.4 the Trust Parties having complied with all covenants contained herein REIT LP and satisfied all terms the Lead Agents shall each have received an executed copy of each of the Reports and conditions contained herein to be complied with a reliance letter in favour thereof as if the REIT LP and satisfied by it at or prior to Agents had each originally commissioned the Closing TimeReports; and
7.2.5 the Agents not having previously terminated their obligations pursuant to Section 11 paragraph 10 of this Agreement.
7.3 It will shall be a condition precedent to the Trust’s REIT LP's obligations to issue the Debentures Initial Units that:
7.3.1 the Trust will Agents shall have received funds from delivered or caused to be delivered to the REIT LP a wire transfer representing the gross proceeds payable by the Agents by wire transfer payable in Toronto representing for the Purchase Price, in Canadian dollarsInitial Units, less an amount equal the Agency Fee and the expenses of the Offering payable pursuant to the Agents’ Fee for such Debentures;paragraph 9 hereof; and
7.3.2 the Agents will shall have complied with the covenants and satisfied all terms and conditions herein contained to be complied with and satisfied by them at or prior to the Closing Time; and
7.3.3 no order will have been made and no proceedings for such purpose being pending or threatened by any Securities Commission that restricts in any manner the distribution of the Debentures;.
7.4 The Over-Allotment Option shall be exercisable, in whole or in part, at any one time until the Over-Allotment Expiry Date. If the Lead Agents, on behalf of the Agents, elect to exercise the Over-Allotment Option, the Lead Agents will provide a direction to CDS with respect shall deliver written notice to the crediting REIT LP confirming the number of Over-Allotment Units in respect of which the Over-Allotment Option is being exercised. The Over-Allotment Option closing time (the "Over-Allotment Closing Time") shall be determined by the Lead Agents on behalf of the Debentures Agents but shall not be earlier than two Business Days or later than five Business Days after the exercise of the Over-Allotment Option and, in any event, shall not be earlier than the Closing Date.
2.1. 8, except that reference therein to the accounts Initial Units and Closing Time shall be deemed, for the purposes of this paragraph 7.4, to refer to such Over-Allotment Units and Over-Allotment Closing Time, respectively, and the participants of CDS as will be designated amount payable by the Agents in writing in sufficient time prior to the REIT LP in respect of the exercise of the Over-Allotment Option shall be equal to the number of Over-Allotment Units in respect of which the Over- Allotment Option is exercised multiplied by the Offering Price, and the agency fee payable by the REIT LP to the Agents in respect of such exercise shall be equal to 6% of the gross proceeds of such Over-Allotment Units, plus applicable taxes, if any (such fee, also the "Agency Fee"). If the Over-Allotment Option is exercised, the Over-Allotment Closing Date shall be conditional on the delivery by the REIT LP and Managing GP of the certificates referred to permit in paragraph 7.2.1.5 as of the Over-Allotment Closing Time as if references therein to Closing Time were references to Over-Allotment Closing Time, the comfort letter from the Auditor required to be delivered at the Over-Allotment Closing Time pursuant to paragraph 4.3 and such creditingother certificates, opinions, agreements, materials or other documents in form and substance satisfactory to the Agents as they may reasonably request. The obligation of the Agents to close the exercise of the Over-Allotment Option at the Over- Allotment Closing Time shall be conditional on the Agents not having previously terminated their obligations pursuant to paragraph 10 this Agreement, with reference therein to “Closing Time" being deemed, for the purposes hereof, to refer to the Over-Allotment Closing Time.
Appears in 1 contract
Samples: Agency Agreement
