Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions: (a) The Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters. (c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters. (d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law. (e) On the date of filing of the Supplement, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated as of such filing date, to the effect that the French language version of the Prospectus (excluding all documents incorporated by reference therein, other than the Supplement, and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, and excluding the Prospectus Financial Information). (f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities. (g) On the date of filing of the Supplement, each Agent shall have received an opinion of KPMG LLP, dated as of such filing date, to the effect that the French language version of (i) all documents incorporated by reference in the Prospectus, as applicable, excluding the Supplement, is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) the Prospectus Financial Information is in all material respects a complete and adequate translation of the English language version of the Prospectus Financial Information. (h) At the Closing Date, the Agents shall have received a certificate from Xxxxx X. Xxxx, Senior Vice President, Regulatory, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. (i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date. (j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Prospectus. (k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global Ratings, a division of S&P Global Inc., Xxxxx’x Investors Service, Inc., Fitch Ratings Ltd. or, in each case, any successor to the rating agency business thereof. (l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the each Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the each Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the each Guarantor of their its obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor Guarantors upon the opinion of counsel for the Company and the GuarantorGuarantors. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx LLP, United States counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, regarding enforceability of the subordination agreement to be entered into simultaneously with the execution of the Supplemental Indenture (as contemplated therein) and regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated as of such respective filing datedates, to the effect that the French language version of the Preliminary Prospectus and the Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, Preliminary Supplement and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such the Preliminary Prospectus and the Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, and excluding the Prospectus Financial Informationas applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of KPMG Fasken Xxxxxxxxx DuMoulin LLP, dated as of such respective filing datedates, to the effect that the French language version of (i) all documents incorporated by reference in the Preliminary Prospectus and the Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, as applicable (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2008 and 2007 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at March 31, 2009 and for the three months ended March 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)) is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus and the Prospectus Financial Information is in all material respects a complete and adequate translation of the English language version of the Prospectus all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx Xxxxxxx X. XxxxXxxxxxxxx, Senior Vice President, RegulatoryRegulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company Company, any Vice President of RWP and any Vice President of the GuarantorRCCI, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company Company, RWP or the GuarantorRCCI, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company Company, RWP or the GuarantorRCCI, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global RatingsStandard and Poor’s Ratings Group, a division of S&P Global The XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors Service, Inc., Fitch Ratings Ltd. IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the GuarantorGuarantors, the performance of any of the agreements of the Company or the GuarantorGuarantors, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx Hxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx Mxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, dated as of such respective filing datedates, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Supplement, Preliminary Supplement and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, and excluding the Prospectus Financial Informationas applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of KPMG Fasken Mxxxxxxxx DuMoulin LLP, dated as of such respective filing datedates, to the effect that the French language version of (i) all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the Prospectus effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of the Prospectus all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx Kxxxxxx X. XxxxXxxxxxxxx, Senior Vice President, RegulatoryRegulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorGuarantor , in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the GuarantorGuarantor , as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global RatingsStandard and Poor’s Ratings Group, a division of S&P Global The MxXxxx-Xxxx Companies, Inc., Xxxxx’x Mxxxx’x Investors Service, Inc., Fitch Ratings Ltd. IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the each Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the each Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the each Guarantor of their its obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx Hxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor Guarantors upon the opinion of counsel for the Company and the GuarantorGuarantors. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, Canadian counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx Mxxxx LLP, United States counsel for the Company and the GuarantorGuarantors, dated as of the Closing Date, regarding enforceability of the subordination agreements to be entered into simultaneously with the execution of the Supplemental Indentures (as contemplated therein) and regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, dated as of such respective filing datedates, to the effect that the French language version of the Preliminary Prospectus and the Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, Preliminary Supplement and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such the Preliminary Prospectus and the Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, and excluding the Prospectus Financial Informationas applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of KPMG Fasken Mxxxxxxxx DuMoulin LLP, dated as of such respective filing datedates, to the effect that the French language version of (i) all documents incorporated by reference in the Preliminary Prospectus and the Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, as applicable (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2008 and 2007 and the Management's Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at September 30, 2009 and for the three and nine months ended September 30, 2009 and 2008 and the Management's Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the "Financial Information")) is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus and the Prospectus Financial Information is in all material respects a complete and adequate translation of the English language version of the Prospectus all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx Kxxxxxx X. XxxxXxxxxxxxx, Senior Vice President, RegulatoryRegulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor Guarantors and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company Company, any Vice President of RWP and any Vice President of the GuarantorRCCI, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s 's knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company Company, RWP or the GuarantorRCCI, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company Company, RWP or the GuarantorRCCI, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “'s "comfort letters” " to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s 's long term debt, including the Securities, by S&P Global RatingsStandard and Poor's Ratings Group, a division of S&P Global The MxXxxx-Xxxx Companies, Inc., Xxxxx’x Mxxxx'x Investors Service, Inc., Fitch Ratings Ltd. IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the GuarantorGuarantors, the performance of any of the agreements of the Company or the GuarantorGuarantors, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the date hereto, the applicable Time of Sale, any First Closing Date as if made on Date, the date the Series 2 Canadian Final Prospectus is filed with the Qualifying Authorities and as of the Second Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates delivered to the Agents pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their its obligations hereunder at or prior to the applicable First Closing Date or Second Closing Date, as the case may be, and to the following additional conditions:
(a) (i) The Supplement applicable Canadian Final Prospectus shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; Procedures and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purposes shall have been instituted or threatened; (ii) the applicable U.S. Final Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of Form F-10; (iii) the Term Sheets contemplated by Section 5(b) hereof and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and (iv) no stop order suspending the effectiveness of the Registration Statement or the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Commission.
(b) At the applicable Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx & Harcourt Stikeman Elliott LLP, Canadian counsel for the AgentsCompany, dated as of such date, addressing such Canadian legal matters set forth in Schedule VII attached hereto and any other Canadian legal matters reasonably requested by the Agents as a result of any fact which arises or is discovered during the period from the date of this Agreement to the Second Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of OntarioXxxxxxx, QuebecXxxxxx, Xxxxxxx and British Columbia and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(dc) At the applicable Closing Date, each Agent shall have received a signed opinion and letter of CravathSkadden, Swaine Arps, Slate, Xxxxxxx & Xxxxx Xxxx LLP, United States counsel for the Company and the GuarantorCompany, dated as of such date, addressing such matters set forth in Schedule VIII attached hereto and any other matters reasonably requested by the Agents as a result of any fact which arises or is discovered during the period from the date of this Agreement to the Second Closing Date. Such counsel may state that, regarding non-contravention insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of material agreements officers of the Company which are governed by New York lawand upon certificates of public officials.
(ed) On At the date time of filing of any Canadian Final Prospectus and any Preliminary Prospectus filed with the SupplementQualifying Authorities, each Agent shall have received an opinion of Davies Norton Xxxx Xxxxxxxx & Xxxxxxxx LLPXxxxxxxxx, dated as of such filing date, to the effect that the French language version of the Prospectus (excluding all documents incorporated by reference therein, other than the Supplement, and excluding the sections in the Final Base Prospectus and the Series 1 Canadian Final Prospectus or Supplementthe Series 2 Canadian Final Prospectus, as applicable, (excluding the sections entitled “Non-GAAP Measures”, Earnings Coverage” and “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) and all documents incorporated by reference, excluding the audited financial consolidated financial statements as at December 31, 2012, December 31, 2011 and January 1, 2011 and for the years ended December 31, 2012 and 2011 and the unaudited consolidated financial statements as at September 30, 2013 and for the nine months ended September 30, 2013 and 2012 and the Management’s Discussion and Analysis of Financial Conditions and Results of Operations in respect of each of those statements (collectively, the “Financial Information”), is in all material respects a complete and adequate translation of the English language version of all such documents.
(e) At the time of filing of any Canadian Final Prospectus (excluding all other documents filed with the Qualifying Authorities, each Agent shall have received an opinion of KPMG LLP, dated as of such date, to the effect that the French language version of Prospectus Financial Information and the Financial Information incorporated by reference thereinin the Series 1 Canadian Final Prospectus or the Series 2 Canadian Final Prospectus, other than as applicable, is in all material respects a complete and adequate translation of the Supplement, and excluding the English language version of all such Prospectus Financial Information and Financial Information), respectively.
(f) At or prior to each First Closing Date, the Agents shall have received satisfactory evidence of the approval of the listing and posting for trading on the TSX of the Series 1 Debentures, subject only to the satisfaction by the Company of the conditions imposed by the TSX, as set out in the letter from the TSX granting conditional listing approval of the Series 1 Debentures.
(g) At or prior to each First Closing Date, the Company shall deliver or cause to be delivered to the Agents evidence satisfactory to the Agents that the Common Shares issuable upon the conversion, redemption or maturity of the Series 1 Debentures or in satisfaction of the Company’s obligations to pay interest or a make-whole payment under the Series 1 Debentures, and the Common Shares issuable upon the exercise of the Series 1 Warrants, have been conditionally approved for listing on the TSX and NYSE MKT, subject to the Company fulfilling the TSX and NYSE MKT requirements. The Agents acknowledge that such conditional approval may include a limitation on the number of Common Shares that are conditionally approved for listing.
(h) At the time of filing the Series 2 Canadian Final Prospectus with the Qualifying Authorities, the Agents shall have received satisfactory evidence of the approval of the listing and posting for trading on the TSX of the Series 2 Debentures, subject only to the satisfaction by the Company of the conditions imposed by the TSX, as set out in the letter from the TSX granting conditional listing approval of the Series 2 Debentures.
(i) At or prior to the filing of the Series 2 Canadian Final Prospectus with the Qualifying Authorities, the Company shall deliver or cause to be delivered to the Agents evidence satisfactory to the Agents that the Common Shares issuable upon the conversion, redemption or maturity of the Series 2 Debentures or in satisfaction of the Company’s obligations to pay interest or a make-whole payment under the Series 2 Debentures, and the Common Shares issuable upon the exercise of the Series 2 Warrants, have been conditionally approved for listing on the TSX and NYSE MKT, subject to the Company fulfilling the TSX and NYSE MKT requirements. The Agents acknowledge that such conditional approval may include a limitation on the number of Common Shares that are conditionally approved for listing.
(j) The Company shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement for the issuance thereunder of the Series 2 Securities, provided that if at any time the Company shall be ineligible to utilize the Registration Statement for the purpose of such issuances, the Company shall promptly (i) notify the Agents in writing that such event has occurred, (ii) amend the Registration Statement or file with the Commission a new registration statement on such other form as may be necessary (and cause such registration statement to be effective as soon as practicable) in order to maintain the effectiveness of a registration statement for this purpose, and (iii) notify the Agents in writing that the Registration Statement has been amended or a new registration statement has been filed with the Commission on such other form as required to maintain the effectiveness of a registration statement for this purpose. For so long as any of the Warrants remain outstanding, the Company shall use its reasonable best efforts to maintain the effectiveness of the Registration Statement for the issuance thereunder of the Common Shares issuable upon exercise of the Warrants (the “Warrant Shares”), provided that if at any time while the Warrants are outstanding the Company shall be ineligible to utilize the Registration Statement for the purpose of issuance of the Warrant Shares, the Company shall promptly amend the Registration Statement or file with the Commission a new registration statement on such other form as may be necessary (and cause such registration statement to be effective as soon as practicable) in order to maintain the effectiveness of a registration statement for this purpose. If at any time following the date hereof and prior to the date that no Warrants remain outstanding the Registration Statement is not effective or is not otherwise available for the issuance of the Debentures, the Warrants or the Warrant Shares or any prospectus contained therein is not available for use, the Company shall immediately notify the Agents and holders of the Securities in writing that the Registration Statement is not then effective or a prospectus contained therein is not available for use and thereafter shall promptly notify the Agents and such holders when the Registration Statement is effective again (or a new registration statement has been filed) and available for the issuance of such Securities or such prospectus is again available for use.
(k) At the applicable Closing Date, each Agent shall have received an opinion of Davies Norton Xxxx Xxxxxxxx & Xxxxxxxx LLPXxxxxxxxx, dated the Closing Dateas of such date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(gl) On At the date of filing of the Supplementapplicable Closing Date, each Agent shall have received an a favourable title opinion of KPMG LLPfrom local counsel retained by the Company reasonably acceptable to the Agents, dated as of such filing date, addressing such matters set forth in Schedule VIV attached hereto and any other matters reasonably requested by the Agents as a result of any fact which arises or is discovered during the period from the date of this Agreement to the effect that the French language version of (i) all documents incorporated by reference in the Prospectus, as applicable, excluding the Supplement, is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) the Prospectus Financial Information is in all material respects a complete and adequate translation of the English language version of the Prospectus Financial InformationSecond Closing Date.
(hm) At the Closing Date, the Agents shall have received a certificate from Xxxxx X. Xxxx, Senior Vice President, Regulatory, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the applicable Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorCompany, in each case dated as of the Closing Datesuch date, to the effect that the signers of such certificate have examined the Registration Statement, the Series 1 Disclosure Package or the Series 2 Disclosure Package, as applicable, the Series 1 Canadian Final Prospectus or the Series 2 Canadian Final Prospectus, as applicable, the Series 1 U.S. Final Prospectus or the Series 2 U.S. Final Prospectus, as applicable, and any supplements or amendments thereto, the Securities, the Base Indenture, the First Supplement or the Second Supplement, as applicable, the Warrants and this Agreement and that, to the best of such signer’s knowledge after due investigation and not in a personal capacity, : (1) the ProspectusSeries 1 Disclosure Package or the Series 2 Disclosure Package, as amended or supplemented at of the Closing Dateapplicable Time of Sale, does did not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date dates as of which information is given in the Series 1 Disclosure Package or the Series 2 Disclosure Package, as applicable, the Series 1 Canadian Final Prospectus or the Series 2 Canadian Final Prospectus, any as applicable, and the Series 1 U.S. Final Prospectus or the Series 2 U.S. Final Prospectus, as applicable, a change, development, event or circumstance that have a Material Adverse ChangeEffect, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the applicable Closing Date Date, and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the applicable Closing Date.
(jn) On At each Time of Sale, the date hereof time of filing of any Canadian Final Prospectus and at the applicable Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the applicable Disclosure Package, the applicable Canadian Final Prospectus and the applicable U.S. Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global Ratings, a division of S&P Global Inc., Xxxxx’x Investors Service, Inc., Fitch Ratings Ltd. or, in each case, any successor to the rating agency business thereof.
(lo) At the applicable Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the GuarantorCompany, the performance of any of the agreements of the Company or the GuarantorCompany, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Second Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 hereinhereof. Notwithstanding any such termination, the provisions of Sections Section 1, Section 6, Section 8, 9 Section 9, Section 10, Section 16 and 10 herein Section 18 hereof shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Final Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated as of such respective filing datedates, to the effect that the French language version of the Preliminary Prospectus or the Final Prospectus (as applicable and in each case excluding all other documents incorporated by reference therein, other than the Supplement, Preliminary Supplement and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Preliminary Supplement and the Final Supplement, and excluding the Prospectus Financial Informationas applicable).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date respective dates of filing of the Preliminary Supplement and the Final Supplement, each Agent shall have received (i) an opinion of KPMG Fasken Xxxxxxxxx DuMoulin LLP, dated as of such respective filing datedates, to the effect that the French language version of (i) all documents incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, excluding the Preliminary Supplement and the Final Supplement, respectively (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2009 and 2008 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements and the unaudited interim consolidated financial statements as at June 30, 2010 and for the three and six months ended June 30, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such respective filing dates, to the Prospectus effect that the French language version of the Financial Information incorporated by reference in the Preliminary Prospectus or the Final Prospectus, as applicable, is in all material respects a complete and adequate translation of the English language version of the Prospectus all such Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx Xxxxxxx X. XxxxXxxxxxxxx, Senior Vice President, RegulatoryRegulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Preliminary Prospectus and the Final Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global RatingsStandard and Poor’s Ratings Group, a division of S&P Global The XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors Service, Inc., Fitch Ratings Ltd. IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company Blue Pearl of its covenants and the Guarantor of their obligations agreements hereunder at or prior to the Closing Date and to the satisfaction of the following additional conditionsconditions at the Closing Time and any Option Closing Time:
(a) The Supplement the Agents shall have been filed with received legal opinions dated the Reviewing Authority Closing Date or the Option Closing Date, as the case may be, from Blue Pearl’s Canadian Counsel and U.S. Counsel addressed to the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus Agents, relating to the Offering and as to the laws of Canada and the Qualifying Jurisdictions, in form and substance satisfactory to Agents’ Canadian Counsel, acting reasonably, to the effect that:
(i) Blue Pearl and each of its Subsidiaries exists and has not been dissolved under the laws of its governing jurisdiction and each has all necessary corporate power and capacity to own or lease its property and assets and to carry on its business as now conducted;
(ii) each of Blue Pearl and Blue Pearl Subco has the necessary corporate power and capacity, and each of them has taken all necessary corporate action, to duly:
(A) execute, deliver and perform its obligations under each of the Offering Agreements and the Acquisition Agreement;
(B) create, issue and sell the Subscription Receipts;
(C) allot, issue and deliver the Common Shares issuable upon the exchange of the Subscription Receipts in accordance with the terms thereof;
(D) create, allot, issue and deliver the Warrants issuable upon exchange of the Subscription Receipts in accordance with the terms thereof; and
(E) allot, issue and deliver the Warrant Shares issuable upon exercise of the Warrants in accordance with the terms thereof;
(iii) each of the Offering Agreements and the Acquisition Agreement has been duly executed and delivered by Blue Pearl and Blue Pearl Subco, as the case may be, and constitutes a legal, valid and binding obligation of Blue Pearl and Blue Pearl Subco, as the case may be, enforceable against it in accordance with its respective terms except as may be limited by the Enforceability Qualifications;
(iv) each of:
(A) the execution and delivery of each of the Offering Agreements, the Acquisition Agreement and the fulfilment of the respective terms thereof;
(B) the issue and sale of the Subscription Receipts and the issue of the Underlying Securities issuable upon the exchange of the Subscription Receipts in accordance with the terms thereof; and
(C) the issue of the Warrant Shares upon exercise of the Warrants in accordance with the terms thereof; does not and will not conflict with, result in a breach of, or create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any notice objecting applicable laws or any term or provision of the articles and by-laws of Blue Pearl or Blue Pearl Subco, or any indenture, contract, agreement (written or oral), instrument, lease or other document to which Blue Pearl and/or Blue Pearl Subco is a party or by which it is bound on the Closing Date (and of which such counsel is aware), which might reasonably be expected to adversely affect the business, operations, capital or condition (financial or otherwise) of Blue Pearl and/or Blue Pearl Subco or each of its use shall assets;
(v) the Subscription Receipts have been issued and no proceedings are duly authorized, executed and delivered by Blue Pearl and are enforceable against Blue Pearl in accordance with their terms and the terms of the Subscription Receipt Agreement, except as enforcement may be limited by the Enforceability Qualifications, and the holders of Subscription Receipts are entitled to the benefits provided by the Subscription Receipt Agreement;
(vi) the Common Shares issuable upon exchange of the Subscription Receipts will, upon exchange of the Subscription Receipts in accordance with the terms thereof, be validly issued by Blue Pearl without further action on the part of Blue Pearl and will be outstanding as fully paid and non-assessable Common Shares;
(vii) the Warrants issuable upon exchange of the Subscription Receipts will, upon exchange of the Subscription Receipts in accordance with the terms thereof, be validly issued by Blue Pearl without further action by Blue Pearl and will be enforceable against Blue Pearl in accordance with their terms and the terms of the Warrant Indenture, except as may be limited by the Enforceability Qualifications, and will be entitled to the benefits provided by the Warrant Indenture;
(viii) the Warrant Shares issuable upon exercise of the Warrants will, upon exercise of the Warrants in accordance with the terms thereof, including payment of exercise price, be validly issued by Blue Pearl without further action on the part of Blue Pearl and will be outstanding as fully paid and non-assessable Common Shares;
(ix) the text under the headings “Eligibility for that purpose shall Investment” and “Canadian Federal Income Tax Considerations” in the Prospectus constitutes an accurate statement of law subject to the assumptions and other qualifications referred to therein;
(x) all necessary documents have been instituted or threatened.filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled by Blue Pearl under the Securities Laws to qualify the Subscription Receipts for distribution in each of the Qualifying Jurisdictions through registrants registered under the applicable legislation in the Qualifying Jurisdictions who comply with the relevant provisions of such applicable legislation;
(bxi) At the Closing Dateissue and delivery of
(A) the Underlying Securities to the holders of Subscription Receipts upon exchange thereof pursuant to the terms thereof; and
(B) the Warrant Shares to the holders of Warrants upon exercise thereof pursuant to the terms thereof; are exempt from the prospectus and registration requirements of Securities Laws and no documents are required to be filed, each Agent shall proceedings taken or approvals, permits, consents, orders or authorizations required to be obtained under Securities Laws (other than such as have received a signed opinion been filed or obtained) to permit such issue and delivery (subject to the qualifications prescribed by National Instrument 45-102 Resale of OslerSecurities);
(xii) the first trade of the Underlying Securities and the Warrant Shares issued as described in the preceding paragraph is exempt from the prospectus requirements of Securities Laws and no documents are required to be filed, Xxxxxx proceedings taken or approvals, permits, consents, order or authorizations required to be obtained under Securities Laws (other than such as have been filed or obtained) to permit such trade (subject to the usual qualifications prescribed National Instrument 45-102 Resale of Securities);
(xiii) the Subscription Receipts, the Underlying Securities and the Warrant Shares have been conditionally approved for listing on the TSX, subject to Blue Pearl fulfilling the usual requirements of the TSX;
(xiv) Equity Transfer & Harcourt LLP, Canadian counsel Trust Company has been duly appointed as (i) registrar and transfer agent for the AgentsCommon Shares, dated as (ii) the Warrant Agent, and (iii) the Escrow Agent;
(xv) the authorized capital of Blue Pearl consists of an unlimited number of Common Shares and an unlimited number of first preferred shares, issuable in series;
(xvi) Blue Pearl is a reporting issuer in each of the Closing Dateprovinces of Canada and is not included in the list of defaulting reporting issuers maintained by the securities commissions in each of the provinces of Canada under the respective securities legislation;
(xvii) the attributes of the Subscription Receipts, the Underlying Securities and the Warrant Shares are consistent in all material respects with respect the description thereof in the Prospectus; and
(xviii) the certificates representing the Subscription Receipts, the Common Shares and Warrants are in proper legal form and comply with the requirements of applicable law and, in the case of the Warrants and the Common Shares, the requirements of the TSX as to the form and content, and such customary matters as certificates have been duly authorized by Blue Pearl and the Agents may reasonably requireregistered holders from time to time of such certificates are entitled to the benefits thereof and are subject to the restrictions contained therein. In giving such opiniontheir opinions, such Blue Pearl’s Canadian Counsel shall be entitled to rely exclusively upon the opinions of local counsel may as to the matters mentioned above relating to jurisdictions other than Ontario and shall be entitled to rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem properfact, upon certificates of officers of the Company or the Guarantor Blue Pearl, Blue Pearl’s registrar and upon transfer agent and on certificates of public and stock exchange officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.;
(cb) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date of filing of the Supplement, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated as of such filing date, from Blue Pearl’s Quebec counsel to the effect that the French language version of the Prospectus (excluding all documents incorporated by reference therein, other than the Supplement, and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, and excluding the Prospectus Financial Information).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language have been complied with in connection with the distribution sale of the Securities.Subscription Receipts to purchasers in Quebec;
(gc) On the date of filing of the Supplement, each Agent shall have received an opinion of KPMG LLP, dated as of such filing date, to the effect that the French language version of (i) all documents incorporated by reference in the Prospectus, as applicable, excluding the Supplement, is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) the Prospectus Financial Information is in all material respects a complete and adequate translation of the English language version of the Prospectus Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx X. Xxxxcertificate, Senior Vice President, Regulatoryor certificates, dated as the Closing Date and each Option Closing Date and executed by each of the Closing DateChief Executive Officer and the Chief Financial Officer of Blue Pearl, in form or such other officers of Blue Pearl agreed to by the Co-Lead Agent and substance satisfactory to the Agents and counsel for the AgentsBlue Pearl, acting reasonably, on behalf of Blue Pearl, without personal liability, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.that:
(i) At a Final Receipt has been issued by the Closing DateOntario Securities Commission as the principal regulator of Blue Pearl under the MRRS, and no order suspending or preventing the Agents shall have received a certificate of any two Vice Presidents use of the Company Prospectus or any Supplementary Material or cease trading the Subscription Receipts or any other securities of Blue Pearl has been issued, and no proceedings for that purpose have been instituted or threatened by any Vice President of the Guarantor, in each case dated as of the Closing Date, Securities Regulator;
(ii) subsequent to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date respective dates as of which information is given in the ProspectusProspectus and any Supplementary Material, there has not been any Material Adverse Changematerial adverse change, or any development involving a prospective material adverse change, in the Condition of Blue Pearl or, to the best knowledge of such officers, the Condition of Txxxxxxx Creek;
(3iii) subsequent to the respective dates as of which information is given in the Prospectus and any Supplementary Material, no transaction out of the ordinary course of business, material to Blue Pearl and its Subsidiaries on a consolidated basis or to, the best knowledge of such officers, Txxxxxxx Creek and its Subsidiaries on a consolidated basis has been entered into by Blue Pearl or, to the best knowledge of Blue Pearl, Txxxxxxx Creek or any of their respective Subsidiaries or has been approved by the management of any of them;
(iv) the Company or the Guarantor, as applicable, has representations and warranties of Blue Pearl contained in this Agreement are true and correct in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to as of the Closing Date and (4) the other representations and warranties of the Company or the GuarantorOption Closing Date, as applicablethe case may be, set forth in Section 1(a) hereof are true with the same force and correct effect as though expressly if made at and as of the Closing Time or the Option Closing Time, as the case may be, after giving effect to the transactions contemplated hereby; and
(v) Blue Pearl has duly complied in all material respects with all the terms and conditions of this Agreement on its part to be complied with up to the Closing Time or the Option Closing Time, as the case may be;
(d) in the event of the offering and sale of Subscription Receipts in the United States or to, or for the account or benefit of, a U.S. Person or a person within the United States pursuant to Section 18 hereof, the Agents shall have received an opinion from U.S. Counsel addressed to each of Blue Pearl and the Agents, to the effect that (i) it is not necessary in connection with the offer and sale of the Subscription Receipts to the U.S. Purchasers to register the Subscription Receipts under the 1933 Act, it being understood that no opinion is expressed as to any resale of the Subscription Receipts; and (ii) assuming that the Underlying Securities are issued by Blue Pearl exclusively to U.S. Purchasers in exchange for the Subscription Receipts and no commission or other remuneration is paid or given directly or indirectly for soliciting such exchange, no registration of the Underlying Securities under the 1933 Act is required for the issuance of the Underlying Securities by Blue Pearl in the United States, it being understood that no opinion is expressed as to any resale of the Common Shares or Warrants and as to the issuance or resale of the Warrant Shares;
(e) the Agents shall have received comfort letters of Blue Pearl’s Auditors and Txxxxxxx Creek’s Auditors dated the Closing Date and each Option Closing Date in form and substance satisfactory to Agents’ Canadian Counsel, acting reasonably, similar to the comfort letters to be delivered to the Agents pursuant to Section 5(l)(e) hereof, and updated to a date not less than two days prior to the Closing Date or the Option Closing Date., as the case may be;
(f) the definitive terms of the Subscription Receipts (including the form of the global Subscription Receipt certificate) and the Subscription Receipt Agreement shall be satisfactory to the Agents and the Agents’ Canadian Counsel, acting reasonably;
(g) the definitive terms of the Warrants (including the form of the global Warrant certificate) and the Warrant Indenture shall be satisfactory to the Agents and the Agents’ Canadian Counsel, acting reasonably;
(h) the Subscription Receipt Agreement shall have been executed and the gross proceeds from the sale of the Subscription Receipts shall have been deposited into escrow thereunder;
(i) on the Closing Date, conditional approval for the listing on the TSX shall have been granted in respect of the Subscription Receipts, the Underlying Securities and the Warrant Shares;
(j) On Blue Pearl shall have delivered the date hereof and at definitive certificate or certificates representing the Closing Date, Subscription Receipts; and
(k) the Agents each shall have received from KPMG LLP each of the executive officers and directors of Blue Pearl written undertakings in favour of the Agents agreeing not to sell, transfer, assign, pledge or otherwise dispose of any securities of Blue Pearl owned or controlled, directly or indirectly, by such officers and directors for a letterperiod of 90 days following the date of issuance of the Final Receipt by the Ontario Securities Commission, in form as principal regulator, without the prior written consent of GMP Securities L.P. and substance reasonably satisfactory to UBS Securities Canada Inc. on behalf of the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” such consent not to agents with respect to the financial statements and certain financial information contained in the Prospectusbe unreasonably withheld.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global Ratings, a division of S&P Global Inc., Xxxxx’x Investors Service, Inc., Fitch Ratings Ltd. or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several Except as may be waived by ------------------------------------- the Agents, the obligations of the Agents hereunder as provided herein shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and in Section 2 hereof as of the Closing Date as if made on date hereof and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor Bank of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date of filing of the Supplement, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated as of such filing date, to the effect that the French language version of the Prospectus (excluding all documents incorporated by reference therein, other than the Supplement, and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and “Earnings Coverage” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, and excluding the Prospectus Financial Information).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date of filing of the Supplement, each Agent shall have received an opinion of KPMG LLP, dated as of such filing date, to the effect that the French language version of (i) all documents incorporated by reference in the Prospectus, as applicable, excluding the Supplement, is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) the Prospectus Financial Information is in all material respects a complete and adequate translation of the English language version of the Prospectus Financial Information.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx X. Xxxxreceive the favorable opinion of Reinhart, Senior Vice PresidentBoerner, RegulatoryVan Dewren, Xxxxxx & Xxxxxxxxxx, P.C., special counsel for the Company and the Bank, dated as of the Closing Date, in form and substance satisfactory addressed to the Agents and counsel for the Agents, with respect to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers treatment under applicable law of the Company or Bank's past and present practice concerning the Guarantor changing of interest on loans and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments recent corrective actions with respect thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to counsel for the Agents, containing statements Agents and information also to the effect that:
(i) the Company has been duly organized and is validly existing as a corporation in good standing under the laws of Delaware; the Bank has been organized and is validly existing as a mutual savings bank under the laws of the type ordinarily included United States; upon consummation of Conversion, the Bank will be duly organized and validly existing as a federal stock savings bank; each of the Company and the Bank has, and the converted Bank will have, full power and authority to own its properties and conduct its business as described in accountant’s “comfort letters” the Prospectus;
(ii) each of the Company and the Bank has been duly qualified to agents do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, unless the failure to be so qualified or in good standing in one or more of such jurisdictions would not have any material adverse effect on the Company and the Bank, taken as a whole;
(iii) the Bank is a member of the FHLB of Cincinnati, the deposit accounts of the Bank are insured by the SAIF up to the applicable limits, and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's actual knowledge, threatened;
(iv) the activities of the Bank are permitted under federal law to subsidiaries of a federal savings and loan holding company and the Bank has no subsidiaries;
(v) the Bank has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except where the failure to hold such licenses, permits or governmental authorizations would not have a material adverse effect on the Company and the Bank, taken as a whole, and all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in all material respects complying therewith; (vi) the Plan complies in all material respects with, and the Conversion of the Bank from a federally chartered mutual savings bank to a federally chartered stock savings bank and the creation of the Company as a holding company for the Bank have been effected in all material respects in accordance with all applicable federal laws, rules, regulations, decisions and orders (except for federal and state securities laws); to such counsel's actual knowledge, all of the terms, conditions, requirements and provisions with respect to the financial statements Plan and certain financial information contained the Conversion imposed by the Office, except with respect to satisfaction of the post- Conversion conditions imposed by the Office in its approvals of the Conversion and the Application H-(e)1-S, have been complied with by the Company and the Bank in all material respects; and, to such counsel's actual knowledge, no person has sought to obtain regulatory or judicial review of the final actions of the Office in approving the Plan; (vii) as of the Closing Date, the Company and the Bank have authorized capital stock as set forth in the Registration Statement and the Prospectus.
, and the descriptions of such stock in the Registration Statement and Prospectus are accurate and complete in all material respects; (kviii) Subsequent the issuance and sale of the Shares have been duly and validly authorized by all necessary corporate action on the part of the Company and have received all requisite regulatory approval; the Shares, upon receipt of payment and issuance in accordance with the terms of the Plan and this Agreement, will be validly issued, fully paid, nonassessable and free of preemptive rights, and to such counsel's actual knowledge, purchasers of the Shares from the Company, upon issuance thereof against payment therefor, will acquire good title to such Shares from the Company, free and clear of all claims, encumbrances, security interests and liens whatsoever created or suffered to be created by the Company; (ix) the certificates for the Shares are in due and proper form and comply with applicable law; (x) the issuance and sale of the capital stock of the Bank to the Company have been duly authorized by all necessary action of the Bank and the Company and have received the approval of the office, and such capital stock, upon receipt of payment and issuance in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and owned of record and, to such counsel's actual knowledge, beneficially by the Company; (xi) subject to the satisfaction of the conditions to the Office's approval of the Conversion, no further approval, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Conversion, except as may be required under the securities or blue sky laws of various jurisdictions (as to which no opinion need be rendered) and except as may be required under the rules and regulations of the NASD; (xii) the execution and delivery of this Agreement and prior to the Closing Date, there shall not consummation of the transactions contemplated hereby have been any downgrading, nor any notice given duly and validly authorized by all necessary action on the part of any intended or potential downgrading or of a possible change that does not indicate the direction each of the possible changeCompany and the Bank; and this Agreement is a legal, in the rating accorded any valid and binding obligation of each of the Company’s long term debtCompany and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, receivership, conservatorship or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings and loan holding companies, including the Securitieslaws relating to the appointment of a receiver or conservator or the rights or powers of the Office or the FDIC, or by S&P Global Ratingsgeneral equity principles, regardless of whether such enforceability is considered in a division proceeding in equity or at law, and except to the extent that the provisions of S&P Global Inc.Sections 8 and 9 hereof may be unenforceable as against public policy, Xxxxx’x Investors Serviceas to which no opinion need be rendered;
(xiii) there is no material legal, Inc.investigation, Fitch Ratings Ltd. regulatory, administrative or governmental investigation, action, suit or proceeding pending or, in each caseto such counsel's actual knowledge, any successor to threatened against or involving the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements assets of the Company or the GuarantorBank, except as described in the performance of any of Prospectus;
(xiv) the agreements statements in the Prospectus under the captions "Regulation," "Taxation," "Capitalization," "Dividend Policy," "Certain Restrictions on Acquisition of the Company or and the Guarantor, or Bank," "Certain Anti-takeover Provisions in the fulfillment Certificate of any Incorporation and Bylaws," "Description of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.Capital Stock,"
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date of filing of the Supplement, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated as of such filing date, to the effect that the French language version of the Prospectus (excluding all documents incorporated by reference therein, other than the Supplement, and excluding the sections in the Final Base Prospectus or Supplement, as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization”, “Earnings Coverage” and “Earnings CoverageAuditors’ Consent” (such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, and excluding the Prospectus Financial Information).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date of filing of the Supplement, each Agent shall have received (i) an opinion of KPMG Fasken Xxxxxxxxx DuMoulin LLP, dated as of such filing date, to the effect that the French language version of (i) all documents incorporated by reference in the Prospectus, as applicable, excluding the SupplementSupplement (and excluding the audited consolidated financial statements as at December 31, 2011, December 31, 2010 and January 1, 2010 and for the years ended December 31, 2011 and 2010 and the unaudited consolidated financial statements as at March 31, 2012 and for the three months ended March 31, 2012 and 2011 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of each of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such filing date, to the effect that the French language version of (A) the Prospectus Financial Information and (B) the Financial Information incorporated by reference in the Prospectus is in all material respects a complete and adequate translation of the English language version of the all such Prospectus Financial Information and Financial Information, respectively.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx Xxxxxxx X. XxxxXxxxxxxxx, Senior Vice President, RegulatoryRegulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorGuarantor , in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the GuarantorGuarantor , as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global RatingsStandard and Poor’s Ratings Group, a division of S&P Global The XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors Service, Inc., Fitch Ratings Ltd. IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
Conditions of the Agents’ Obligations. The several obligations of the Agents hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein on and as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Supplement shall have been filed with the Reviewing Authority and the other Qualifying Authorities under the Shelf Procedures; and no order suspending the use of any prospectus relating to the Securities or of any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) At the Closing Date, each Agent shall have received a signed opinion of Osler, Xxxxxx Hxxxxx & Harcourt LLP, Canadian counsel for the Agents, dated as of the Closing Date, with respect to such customary matters as the Agents may reasonably require. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario, Quebec, British Columbia Quebec and Alberta and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents and as to legal matters pertaining to the Company and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Agent shall have received a signed opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, Canadian counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Agents and their counsel. In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Agents. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Agent shall have received a signed opinion of Cravath, Swaine & Xxxxx Mxxxx LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, regarding non-contravention of material agreements of the Company which are governed by New York law.
(e) On the date of filing of the Supplement, each Agent shall have received an opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, dated as of such filing date, to the effect that the French language version of the Prospectus (excluding all documents incorporated by reference therein, other than the Supplement, and Supplement (excluding the sections in the Final Base Prospectus or Supplement, entitled therein as applicable, entitled “Non-GAAP Measures”, “Consolidated Capitalization” and ”, “Earnings Coverage” (and “Auditors’ Consent”, such sections collectively referred to herein as the “Prospectus Financial Information”)) is in all material respects a complete and adequate translation of the English language version of such Prospectus (excluding all other documents incorporated by reference therein, other than the Supplement, and excluding the Prospectus Financial Information).
(f) At the Closing Date, each Agent shall have received an opinion of Davies Xxxx Wxxx Xxxxxxxx & Xxxxxxxx Vxxxxxxx LLP, dated the Closing Date, regarding compliance with all the laws of the Province of Quebec relating to the use of the French language in connection with the distribution of the Securities.
(g) On the date of filing of the Supplement, each Agent shall have received (i) an opinion of KPMG Fasken Mxxxxxxxx DuMoulin LLP, dated as of such filing date, to the effect that the French language version of (i) all documents incorporated by reference in the Prospectus, as applicable, excluding the SupplementSupplement (and excluding the audited consolidated financial statements as at and for the years ended December 31, 2010 and 2009 and the Management’s Discussion and Analysis of Financial Condition and Results of Operations in respect of those statements (collectively, the “Financial Information”)), is in all material respects a complete and adequate translation of the English language version of all such documents and (ii) an opinion of KPMG LLP, dated as of such filing date, to the effect that the French language version of (A) the Prospectus Financial Information and (B) the Financial Information incorporated by reference in the Prospectus is in all material respects a complete and adequate translation of the English language version of the all such Prospectus Financial Information and Financial Information, respectively.
(h) At the Closing Date, the Agents shall have received a certificate from Xxxxx Kxxxxxx X. XxxxXxxxxxxxx, Senior Vice President, RegulatoryRegulatory of the Company, dated as of the Closing Date, in form and substance satisfactory to the Agents and counsel for the Agents, to the effect set forth in Annex A hereto. In delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(i) At the Closing Date, the Agents shall have received a certificate of any two Vice Presidents of the Company and any Vice President of the GuarantorGuarantor , in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Prospectus and any supplements or amendments thereto, and that, to the best of such signer’s knowledge and not in a personal capacity, (1) the Prospectus, as amended or supplemented at the Closing Date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the date as of which information is given in the Prospectus, any Material Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4) the other representations and warranties of the Company or the GuarantorGuarantor , as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(j) On the date hereof and at the Closing Date, the Agents each shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Agents, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to agents with respect to the financial statements and certain financial information contained in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long term debt, including the Securities, by S&P Global RatingsStandard and Poor’s Ratings Group, a division of S&P Global The MxXxxx-Xxxx Companies, Inc., Xxxxx’x Mxxxx’x Investors Service, Inc., Fitch Ratings Ltd. IBCA or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Agents shall have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 7(b) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the Guarantor, or the fulfillment of any of the conditions herein contained. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Agents on notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 herein. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9 and 10 herein shall remain in effect.
Appears in 1 contract
