EXECUTION COPY
BRASCAN CORPORATION
Debt Securities
Underwriting Agreement
December 7, 2001
Credit Suisse First Boston Corporation
Banc One Capital Markets, Inc.
BNP Paribas Securities Corp.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC World Markets Corp.
Trilon International Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Brascan Corporation, a corporation amalgamated under the laws of Ontario,
Canada (the "Company") proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement Standard Provisions, dated December 7,
2001 (the "Standard Provisions"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). A copy of the Standard Provisions is set
forth in Schedule III hereto. Each of the provisions of the Standard Provisions
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Underwriting Agreement to the same extent as if such provisions had
been set forth in full herein; and each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of
this Underwriting Agreement. Each reference to the Representatives herein and in
the Standard Provisions so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act on
behalf of the Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Standard Provisions and the
address of the Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
A supplement to the Shelf Prospectus relating to the Designated
Securities, substantially in the form heretofore delivered to you, is now
proposed to be filed with the OSC, and a supplement to the Prospectus relating
to the Designated Securities, substantially in the form heretofore delivered to
you, is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us twelve counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement among each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement Among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Brascan Corporation
By:/s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice-President
By:/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice-President, Finance
Accepted as of the date hereof:
Credit Suisse First Boston Corporation
By:/s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
2
SCHEDULE I
Principal Amount of Designated
Underwriter Securities to be Purchased
----------- --------------------------
Credit Suisse First Boston Corporation $ 150,000,000
Banc One Capital Markets, Inc. 33,000,000
BNP Paribas Securities Corp. 33,000,000
Xxxxxxx, Sachs & Co. 33,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 33,000,000
CIBC World Markets Corp. 9,000,000
Trilon International Inc. 9,000,000
--------------
Total: US$300,000,000
==============
3
SCHEDULE II
Title of Designated Securities:
8.125% Notes due December 15, 2008
Aggregate principal amount:
US$300,000,000
Price to Public:
98.538% of the principal amount of the Designated Securities, plus
accrued interest, if any, from December 12, 2001
Purchase Price by Underwriters:
97.913% of the principal amount of the Designated Securities, plus
accrued interest, if any, from December 12, 2001
Underwriting Commission (including aggregate dollar amount):
0.625% of the principal amount of the Designated Securities ($1,875,000)
Specified funds for payment of purchase price:
Same day funds, to be paid by wire transfer, net of commission, to the
Company
Indenture:
Indenture dated September 20, 1995, as supplemented by the Third
Supplemental Indenture, to be dated as of December 12, 2001, made between
the Company, as issuer, and Computershare Trust Company of Canada, as
Trustee (the "Indenture")
Maturity: December 15, 2008
Interest Rate: 8.125%
Interest Payment Dates:
June 15 and December 15, commencing June 15, 2002
Redemption Provisions:
The Designated Securities are redeemable as a whole, but not in part, at
the option of the Company in the event of certain changes affecting
Canadian withholding taxes. Otherwise the Designated Securities will not
be redeemable prior to maturity.
Sinking Fund Provisions:
No sinking fund provisions
Manner of Delivery of Designated Securities:
Registered Global Securities
II - 1
Time of Delivery:
9:00 a.m. (New York City time), December 12, 2001
Closing location:
Torys
Xxxxx 0000, Xxxxxxxx Xxxx Xxxxx
XX Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Other Provisions:
The commercial (printed) copies of the Prospectus as amended or
supplemented in relation to the Designated Securities requested by the
Underwriters shall be made available to the Underwriters in New York, New
York no later than 10:00 a.m. on the business day next succeeding the date
of the Underwriting Agreement.
Names and addresses of Designated Representative:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
II - 2
Schedule III
BRASCAN CORPORATION
Debt Securities
Underwriting Agreement
Standard Provisions
December 7, 2001
From time to time Brascan Corporation, a corporation amalgamated
under the laws of Ontario, Canada (the "Company"), may enter into one or more
underwriting agreements ("Underwriting Agreements"),and,subject to the terms and
conditions stated or provided for therein, issue and sell to the firms named as
underwriters in the applicable Underwriting Agreement (such firms constituting
the "Underwriters" with respect to such Underwriting Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in such Underwriting Agreement (with respect to such Underwriting
Agreement, the "Designated Securities"). The standard provisions set forth
herein may be incorporated by reference in any Underwriting Agreement and each
reference herein to the Underwriting Agreement shall refer to the Underwriting
Agreement with respect to a particular issuance and sale of Designated
Securities.
The terms and rights of the Designated Securities shall be as
specified in the Underwriting Agreement and in or pursuant to the indenture,
including any supplements thereto (the "Indenture"), identified in the
Underwriting Agreement.
1. The Underwriting Agreement shall specify the firms designated as
representatives (the "Representatives") of the Underwriters of the Designated
Securities. The term "Representatives" also refers to a single firm acting as
sole representative of the Underwriters and to Underwriters who act without any
firm being designated as their representative. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Underwriting Agreement with respect to the Designated Securities specified
therein. The Underwriting Agreement shall specify the aggregate principal
amount of the Designated Securities,
the initial public offering price of the Designated Securities, the purchase
price to be paid to the Company by the Underwriters for the Designated
Securities, the commission to be paid by the Company to the Underwriters with
respect to the sale of the Designated Securities, the names of the Underwriters
of the Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of the Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of the Designated Securities and payment therefor. The Underwriting
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of the
Designated Securities, shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under the Underwriting Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) The Company is qualified to file a short form prospectus that is a
base shelf prospectus pursuant to the requirements of National Instrument
44-101- Short Form Prospectus Distribution and 44-102 - Shelf Distributions. The
Company has prepared and filed with the Ontario Securities Commission in the
province of Ontario (the "Reviewing Authority") and with the securities
regulatory authorities (the "Qualifying Authorities") in each of the other
provinces of Canada (the "Qualifying Provinces") a preliminary base shelf
prospectus relating to the Securities (in the English and French languages,as
applicable, the "Preliminary Shelf Prospectus"), and has prepared and filed with
the Reviewing Authority and the Qualifying Authorities, a final base shelf
prospectus relating to the Securities (in the English and French languages, as
applicable, and as it may be amended, the "Shelf Prospectus"). The Company has
filed the Preliminary Shelf Prospectus and the Shelf Prospectus with the
Reviewing Authority and the Qualifying Authorities pursuant to National Policy
43-201 - Mutual Reliance Review System for Prospectuses and Annual Information
Forms and its related memorandum of understanding, and the Reviewing Authority
is acting as principal regulator. The Reviewing Authority has issued, on behalf
of itself and the Qualifying Authorities, a preliminary Mutual Reliance Review
System Decision Document for the Preliminary Shelf Prospectus and a final Mutual
Reliance Review System Decision Document for the Shelf Prospectus, each in the
form heretofore delivered to the Representatives. No other document with respect
to such base shelf prospectus, amendment thereto, or document incorporated by
reference therein has heretofore been filed or transmitted for filing with the
Reviewing Authority or the Qualifying Authorities, except for any documents
filed with the Reviewing Authority or the Qualifying Authorities subsequent to
the date of issuance of the Final Mutual Reliance Review System Decision
Document in the form
2
heretofore delivered to the Representatives for each of the Underwriters; and no
order having the effect of preventing or suspending the use of any prospectus
relating to the Securities has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Reviewing Authority or any of the Qualifying Authorities. Any reference to the
Shelf Prospectus as amended or supplemented shall be deemed to refer to the
Shelf Prospectus as amended or supplemented in relation to the Designated
Securities in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of filing of such amendment or
supplement;
(b) The Company meets the eligibility requirements for use of Form F-9
("Form F-9") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Securities and has filed a registration statement, as
amended, on Form F-9, including the final short form shelf prospectus for which
the Reviewing Authority has issued a final Mutual Reliance Review System
Decision Document and modified as required or permitted by Form F-9 (File No.
333-14130), with respect to the Securities and an appointment of agent for
service of process upon the Company on Form F-X (the "Form F-X") with the
Securities and Exchange Commission (the "Commission"); such registration
statement (including any pre-effective amendment thereto) and any post-effective
amendment thereto, each in the form heretofore delivered to the Representatives,
excluding exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission, except for any documents filed with the Commission subsequent to the
date of such effectiveness in the form heretofore delivered to the
Representatives for each of the Underwriters; and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (any preliminary prospectus (including any
supplement thereto) included in such registration statement being hereinafter
called a "Preliminary Prospectus"); the various parts of such registration
statement, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at the time
such part of the registration statement became effective, and including any
amendment or supplement to the Shelf Prospectus that is deemed by the securities
laws in each of the Province of Ontario and the Qualifying Provinces to be
incorporated by reference into the Shelf Prospectus as of the date of such
amendment or supplement prepared and filed with the Reviewing Authority and the
Qualifying Authorities in accordance with the securities laws in each of the
Province of Ontario and the Qualifying Provinces being hereinafter called the
"Registration Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior
3
to the date of the Underwriting Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the securities laws in each of the Province of Ontario
and the Qualifying Provinces or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as the case may be, and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the Designated Securities
in accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of filing of such amendment or supplement;
(c) The Prospectus consists of, and the Prospectus as amended or
supplemented will consist of, the Shelf Prospectus and the Shelf Prospectus as
amended or supplemented, respectively, except in each case for modifications
required or permitted by Form F-9 and the applicable rules and regulations of
the Commission;
(d) The documents incorporated by reference in the Prospectus, when they
were filed with Reviewing Authority and the Qualifying Authorities, complied in
all material respects with the applicable requirements of the securities laws of
each of the Province of Ontario and the Qualifying Provinces, and none of such
documents, as of their respective issue dates, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents are filed with
the Reviewing Authority and the Qualifying Authorities and the Commission will
comply in all material respects with the applicable requirements of the
securities laws of each of the Province of Ontario and the Qualifying Provinces,
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of an
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities;
4
(e) No order preventing or suspending the use of any Preliminary
Prospectus or preliminary prospectus supplement has been issued by the
Commission, and each Preliminary Prospectus and preliminary prospectus
supplement did not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives expressly
for use therein;
(f) The Shelf Prospectus conforms, and any further amendments or
supplements to the Shelf Prospectus, will conform, in all material respects,
with the applicable requirements of the securities laws of each of the Province
of Ontario and the Qualifying Provinces, and do not and will not, as of their
respective filing dates, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of an Underwriter of Designated Securities through the Representatives expressly
for use in the Shelf Prospectus as amended or supplemented relating to such
Securities;
(g) The Registration Statement, the Prospectus and the Form F-X conform
and any further amendments or supplements thereto will conform, in all material
respects, with the applicable requirements of the Securities Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and
regulations of the Commission thereunder, and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which loss or
5
interference is materially adverse to the Company and its subsidiaries, on a
consolidated basis, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented; and, since the respective dates as of
which information is given in the Registration Statement and the Prospectus and,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, there has not been any change in the capital stock of the Company
(other than pursuant to stock dividends, conversions of securities, employee
stock options and other employee benefit plans and agreements described or
referred to in the Prospectus as amended or supplemented), any increase in the
long-term debt of the Company and its subsidiaries on a consolidated basis,
except as provided for in the Underwriting Agreement, or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position or results of operations of the Company and its
subsidiaries, which change is (or, in the case of prospective changes, will be)
materially adverse to the Company and its subsidiaries on a consolidated basis;
(i) The Company has been duly amalgamated and is validly existing as a
corporation under the laws of Ontario, Canada and is current with respect to the
filing of annual returns with the Minister of Consumer and Commercial Relations
for the Province of Ontario, with power and authority (corporate, regulatory and
other) to own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(j) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented;
(k) The Securities have been duly authorized, and, when the Designated
Securities are issued and delivered pursuant to the Underwriting Agreement, the
Designated Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which will be
substantially in the form, save for any indenture supplements relating to a
particular issuance of Designated Securities, filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery (as defined
in Section 4 hereof) for the Designated Securities, the Indenture will
constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented;
6
(l) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated Securities, the
Indenture, the Underwriting Agreement, and the consummation of the transactions
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the articles or
by-laws of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order, registration,
clearance or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by the Underwriting
Agreement or the Indenture, except such as have been, or will have been prior to
the Time of Delivery, obtained under the securities laws of the Province of
Ontario, the Securities Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations, clearances or qualifications
as may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the Underwriters;
(m) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and in the Prospectus as amended or
supplemented under the caption "Description of Notes", insofar as they purport
to constitute a summary of the terms of the Securities and the Designated
Securities, respectively, and under the captions "Plan of Distribution" in the
Prospectus and "Underwriting" in the Prospectus as amended or supplemented,
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are fair summaries of the matters referred to therein;
(n) Neither the Company nor any of its subsidiaries is in violation of
its certificate of incorporation or by-laws. Neither the Company nor any of its
subsidiaries is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except such
violations or defaults which the Company has reasonable cause to believe would
not individually or in the aggregate have a material adverse effect on the
consolidated financial position, shareholders' equity or results of operation of
the Company and its subsidiaries on a consolidated basis;
7
(o) Other than as set forth in the Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which the Company has reasonable cause to
believe would individually or in the aggregate have a material adverse effect on
the consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries on a consolidated basis; and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(p) The Company is not and, after giving effect to the offering and sale
of the Designated Securities, will not be required to register as an "investment
company," as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(q) The Company is not a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended (the "Public Utility Act"), and
is not required to be registered as a holding company under the Public Utility
Act in order to conduct its business as is presently conducted or proposed to be
conducted as described in the Prospectus or to consummate the transactions
contemplated by the Underwriting Agreement;
(r) No stamp or other issuance or transfer taxes or duties and no
withholding or other taxes are payable by or on behalf of the Underwriters to
Canada or any political subdivision or taxing authority thereof or therein in
connection with (A) the issuance, sale and delivery by the Company outside
Canada to or for the respective accounts of the Underwriters of the Designated
Securities or (B) the sale and delivery outside Canada by the Underwriters of
the Designated Securities to the initial purchasers thereof (assuming (i) the
Underwriters are not, and are not deemed to be, resident in Canada for the
purpose of the Income Tax Act (Canada) and (ii) the Underwriters do not hold or
use the Designated Securities in the course of carrying on business in Canada
for the purpose of the Income Tax Act (Canada)); and
(s) Deloitte & Touche LLP, chartered accountants, who have certified
certain financial statements of the Company and its subsidiaries are independent
public accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder.
3. (a) Upon the execution of the Underwriting Agreement and
authorization by the Representatives of the release of the Designated
Securities, the several Underwriters propose to offer the Designated Securities
for sale upon
8
the terms and conditions set forth in the Prospectus as amended or supplemented.
(b) Each Underwriter represents that it has not offered or sold, directly
or indirectly, and agrees that it will not, directly or indirectly, offer, sell
or deliver any of the Designated Securities purchased by it under the
Underwriting Agreement, in Canada or to any resident of Canada, in contravention
of the securities laws of any province or territory of Canada. Each Underwriter
further agrees that it will include a comparable provision in any
sub-underwriting, banking group or selling group agreement or similar
arrangement with respect to the Designated Securities that may be entered into
by such Underwriter.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Underwriting Agreement, in definitive form to the extent practicable
(except as otherwise provided in the Underwriting Agreement) and in such
authorized denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company, and
payment of the aggregate underwriting commission in respect of the Designated
Securities set forth in the Underwriting Agreement, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price for such Designated Securities set forth in the Underwriting
Agreement, each such payment to be made in the manner and in the funds specified
in the Underwriting Agreement, all at the place and time and date specified in
the Underwriting Agreement or in such other manner and funds and at such other
place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Designated Securities.
5. The Company agrees with each of the Underwriters of the Designated
Securities:
(a) To prepare a supplement to the Shelf Prospectus in accordance with the
requirements of the securities laws of each of the Province of Ontario and the
Qualifying Provinces and a supplement to the Prospectus consisting of the
supplement to the Shelf Prospectus modified as required or permitted by Form
F-9, in each case in a form approved by the Representatives and (i) to file such
supplement to the Shelf Prospectus with the Reviewing Authority and the
Qualifying Authorities pursuant to the securities laws of each of the Province
of Ontario and the Qualifying Provinces not later than the close of business on
the second business day following the execution and delivery of the Underwriting
Agreement or, if applicable, such earlier time as may be required by the
securities laws of each of the Province of Ontario and the Qualifying Provinces,
and (ii) to
9
file such supplement to the Prospectus with the Commission pursuant to General
Instruction II.K. of Form F-9 not later than the Commission's close of business
on the next business day following such filing with the Reviewing Authority or,
if applicable, such earlier time as may be required by such General Instruction
II.K. or the OSA; to make no further amendment or supplement to the Shelf
Prospectus, the Registration Statement or the Prospectus after the date of the
Underwriting Agreement and prior to the Time of Delivery unless such amendment
or supplement is approved by the Representatives after reasonable notice thereof
(which approval shall not be unreasonably withheld); to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
with the Reviewing Authority and the Qualifying Authorities all documents
required to be filed by the Company with the Reviewing Authority and the
Qualifying Authorities that are deemed to be incorporated by reference into the
Shelf Prospectus and with the Commission all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act, in each case, for
so long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Shelf Prospectus or Registration Statement has been filed or
becomes effective or any supplement to the Shelf Prospectus, the Prospectus or
any amended Prospectus has been filed with the Reviewing Authority and the
Qualifying Authorities or the Commission, of the issuance by the Reviewing
Authority, any Qualifying Authority or the Commission of any stop order or of
any order preventing or suspending the use of any prospectus, relating to the
Securities, of the suspension of the qualification of such Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Reviewing Authority,
any Qualifying Authority or the Commission for the amending or supplementing of
the Shelf Prospectus, the Registration Statement or the Prospectus or for
additional information relating to the Securities, the Shelf Prospectus, the
Registration Statement or the Prospectus; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may reasonably
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
dealer in
10
securities in any jurisdiction, (ii) file any general consent to service of
process or (iii) subject itself to taxation in any jurisdiction if it is not so
subject;
(c) To furnish the Underwriters in New York City or at such other places
as requested by the Underwriters with copies of the Prospectus as amended or
supplemented in such reasonable quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required by
law at any time in connection with the offering or sale of the Designated
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Shelf Prospectus or the Prospectus or to file under the
securities laws of each of the Province of Ontario and the Qualifying Provinces
or the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the securities laws of each of the Province of Ontario and
the Qualifying Provinces, the Securities Act, the Exchange Act, the Business
Corporations Act (Ontario) or the Trust Indenture Act, to notify the
Representatives and upon their reasonable request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158 thereunder); and
(e) During the period beginning from the date of the Underwriting
Agreement and continuing to and including the Time of Delivery for the
Designated Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year after such
Time of Delivery and which are substantially similar to the Designated
Securities, without the prior written consent of the Representatives, such
consent not to be unreasonably withheld. 11
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the filing with respect to the Securities under the securities
laws of each of the Province of Ontario and the Qualifying Provinces, the
registration of the Securities under the Securities Act, any listing of the
Designated Securities on a stock exchange or automated quotation system, and all
other expenses in connection with the preparation, printing and filing in
Ontario and the Qualifying Provinces and the United States of America, as may be
applicable, of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) subject to
such limitation as may be set forth in the Underwriting Agreement, the cost of
printing or producing any Agreement among the Underwriters, these Standard
Provisions and the Underwriting Agreement; (iii) the cost of printing or
producing any Indenture, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Designated Securities; (iv) subject to such limitation as may be set forth
in the Underwriting Agreement, all reasonable expenses in connection with the
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating the Securities;
(vi) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vii)
the cost of preparing the Securities; (viii) the fees and expenses of any
Trustee and any agent of any Trustee and the reasonable fees and disbursements
of counsel for any Trustee in connection with any Indenture and the Securities;
and (ix) all other costs and expenses incident to the performance of its
obligations pursuant to the Underwriting Agreement which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as otherwise specifically provided in this Section, Section 8 and Section
11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make, including the expenses of any "tombstone" advertisement related to the
offering of the Designated Securities; provided, that no such tombstone
advertisement shall be published without the prior approval of the Company,
which approval shall not be unreasonably withheld.
7. The obligations of the Underwriters of the Designated
Securities under the Underwriting Agreement shall be subject, in the discretion
of the Representatives, to the condition that all representations and warranties
and
12
other statements of the Company in or incorporated by reference in the
Underwriting Agreement are, at and as of the Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
pursuant to the Underwriting Agreement theretofore to be performed, and the
following additional conditions:
(a) The supplement to the Shelf Prospectus shall have been filed with the
Reviewing Authority and the Qualifying Authorities pursuant National Policy
43-201 and its related memorandum of understanding within the applicable time
period prescribed for such filing thereunder and the supplement to the
Prospectus shall have been filed with the Commission pursuant to General
Instruction II.K. of Form F-9 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act and, in each
case, in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or, to
the knowledge of the Company, threatened by the Commission; no order having the
effect of preventing or suspending the use of any prospectus relating to the
Securities shall have been issued and no proceeding for that purpose shall have
been initiated or, to the knowledge of the Company, threatened by the Reviewing
Authority or any Qualifying Authorities; and all requests for additional
information on the part of the Reviewing Authority, any Qualifying Authority and
the Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for the
Designated Securities, with respect to the validity of the Indenture, the
Designated Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters (it being
understood that, to the extent such opinion relates to the laws of Ontario and
the federal laws of Canada applicable therein, such counsel shall be entitled to
rely on the opinion of Canadian counsel to the Company delivered pursuant to
Section 7(c) hereof);
(c) The Company shall have furnished to the Representatives the written
opinion of Torys, Canadian counsel for the Company (or other Canadian counsel
for the Company reasonably satisfactory to the Representatives), dated the Time
of Delivery for the Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company has been duly amalgamated and is validly existing as
a corporation under the laws of Ontario, with full corpo-
13
rate power and authority to own its properties and conduct its
business as described in the Prospectus, as amended or supplemented;
(ii) The Company has an authorized share capital as set forth in
the Prospectus as amended or supplemented;
(iii) To the best of such counsel's knowledge, and other than as set
forth in the Prospectus as amended and supplemented, (A) there are
no legal or governmental proceedings pending to which the Company,
Brookfield Properties Corporation, Great Lakes Power Inc. or Trilon
Financial Corporation is a party or of which any property of the
Company, Brookfield Properties Corporation, Great Lakes Power Inc.
or Trilon Financial Corporation is the subject which, if determined
adversely to the Company, Brookfield Properties Corporation, Great
Lakes Power Inc. or Trilon Financial Corporation, such counsel has
reasonable cause to believe are of a character required by the
Securities Act (Ontario) and the rules and regulations adopted
thereunder to be described or referred to in the Prospectus, and (B)
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) The Underwriting Agreement has been duly authorized and, to the
extent that execution and delivery are matters governed by the laws
of the Province of Ontario or the federal laws of Canada applicable
therein, executed and delivered by the Company;
(v) The Designated Securities have been duly authorized and
authenticated and issued pursuant to the Indenture, to the extent
that execution and delivery are matters governed by the laws of the
Province of Ontario or the federal laws of Canada applicable
therein, executed and delivered by the Company; and the Designated
Securities and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus, as amended or supplemented;
(vi) The Indenture has been duly authorized, and, to the extent that
execution and delivery are matters governed by the laws of the
Province of Ontario or the federal laws of Canada applicable
therein, executed and delivered by the Company;
(vii) The issue and sale of the Designated Securities pursuant to
the Underwriting Agreement and the Indenture and the perfor-
14
xxxxx by the Company of its obligations under each of the Designated
Securities, the Indenture and the Underwriting Agreement and the
consummation of the transactions therein contemplated will not (A)
to the best of such counsel's knowledge, conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to
such counsel to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject; or (B) result in any violation of the provisions of the
articles or by-laws of the Company, or any statute or any order,
rule or regulation known to such counsel to be applicable to the
Company, of any Ontario or Canadian federal court or any Ontario or
Canadian federal governmental agency or body having jurisdiction
over the Company or any of its properties known to such counsel,
without any special enquiry;
(viii) No consent, approval, authorization, order, registration,
clearance or qualification of or with any such Ontario or Canadian
federal court or governmental agency or body is required for the
issue and sale of the Designated Securities or the consummation by
the Company of the transactions contemplated by the Underwriting
Agreement or the Indenture, except such as have been obtained under
the securities laws of each of the Province of Ontario and the
Qualifying Provinces;
(ix) The Shelf Prospectus, each amendment thereto and supplement
thereof and each document incorporated or deemed to be incorporated
by reference therein has been duly approved by, or under the
authority of, the Board of Directors of the Company, and the Shelf
Prospectus and each amendment thereto has been duly executed on
behalf of the Company in accordance with the securities laws of
each of the Province of Ontario and the Qualifying Provinces;
(x) The Shelf Prospectus, as amended or supplemented, and the
documents incorporated by reference in the Shelf Prospectus, as
amended or supplemented (other than the financial statements and
related schedules and other financial information contained therein
or omitted therefrom and the auditors' report thereon, as to which
such counsel need express no opinion), as of its issue date and the
date it was filed with the Reviewing Authority and the Qualifying
Authorities, complied in all material respects as to form
15
with the applicable requirements of the securities laws of each of
the Province of Ontario and the Qualifying Provinces;
(xi) The Prospectus, as amended or supplemented, constitutes the
entire disclosure document required to offer the Designated
Securities in each of the Province of Ontario and the Qualifying
Provinces; the exhibits to the Registration Statement included or
incorporated by reference in the Prospectus and the documents
incorporated by reference in the Prospectus, as amended or
supplemented, include the only reports or information (other than
the Shelf Prospectus) that in accordance with the requirements of
Ontario law are required to be made publicly available in connection
with the offering and distribution of the Designated Securities in
each of the Province of Ontario and the Qualifying Provinces;
(xii) The Company has received a Final Mutual Reliance Review System
Decision document from the Reviewing Authority on behalf of itself
and the Qualifying Authorities in respect of the Shelf Prospectus
and any amendments thereto and the final prospectus supplement
constituting part of the Shelf Prospectus was filed with the
Reviewing Authority and the Qualifying Authorities in the manner and
within the time period required by applicable Canadian securities
laws; all necessary documents have been filed, all requisite
proceedings have been taken and all other legal requirements have
been fulfilled under the securities laws of each of the Provinces
of Canada to qualify the distribution of the Designated Securities
to the public in each of the Provinces of Canada through registrants
under applicable securities laws of each of the Provinces of
Canada who have complied with the applicable provisions of such
securities laws; to the best knowledge of such counsel, without
having made any special enquiry, no order having the effect of
ceasing or suspending the distribution of the Designated Securities
has been issued and no proceeding for that purpose has been
initiated or threatened by the Reviewing Authority or any Qualifying
Authority;
(xiii) The statements as to Canadian taxation set forth in the
Prospectus as amended or supplemented under the caption "Certain
Canadian Federal Income Tax Considerations," insofar as such
statements constitute a summary of the laws of the Province of
Ontario or the federal laws of Canada applicable therein referred to
under such caption, are a fair summary thereof;
16
(xiv) The information in the Registration Statement under "Part II -
Information Not Required to Be Delivered to Offerees or Purchasers
- Indemnification" is accurate in all material respects insofar as
it purports to summarize the provisions of the laws and documents
referred to therein;
(xv) No withholding tax imposed under the federal laws of Canada
will be payable in respect of the commission or fee to be paid by
the Company pursuant to the Underwriting Agreement to any
Underwriter who is not resident in Canada and with whom the Company
deals at arm's length, provided that such commission or fee is
reasonable in the circumstances and is payable in respect of
identifiable services rendered by such Underwriter outside of Canada
and which are performed by such Underwriter in the ordinary course
of a business carried on by it that includes the performance of such
a service for a commission or fee;
(xvi) A court of competent jurisdiction in the Province of Ontario
(a "Canadian Court") would give effect to the choice of the law of
the State of New York ("New York law") as the proper law governing
the Indenture, the Designated Securities and the Underwriting
Agreement, provided that such choice of law is bona fide (in the
sense that it was not made with a view to avoiding the consequences
of the laws of any other jurisdiction) and provided that such choice
of law is not contrary to public policy, as that term is understood
under the laws in the Province of Ontario and the federal laws of
Canada applicable therein, and in such counsel's opinion the choice
of New York law is not contrary to public policy, as that term is
understood under the laws in the Province of Ontario and the federal
laws of Canada applicable therein;
(xvii) In an action on a final and conclusive judgment in personam
of any federal or state court sitting in the Borough of Manhattan,
The City of New York, New York (a "New York Court") that is not
impeachable as void or voidable under New York law, a Canadian Court
would give effect to the appointment by the Company of CT
Corporation System, as its agent for service in the United States of
America under the Indenture, the Designated Securities and the
Underwriting Agreement and to the provisions in the Indenture and
the Underwriting Agreement whereby the Company has submitted to the
non-exclusive jurisdiction of a New York Court;
17
(xviii) If the Indenture, the Designated Securities or the
Underwriting Agreement are sought to be enforced in the Province of
Ontario in accordance with the laws applicable thereto as chosen by
the parties, namely New York law, a Canadian Court would, subject to
the qualifications set out in paragraph (xv) above, recognize the
choice of New York law, and, upon appropriate evidence as to such
law being specifically pleaded and proved, apply such law, provided
that none of the provisions of the Indenture, the Designated
Securities or the Underwriting Agreement or of applicable New York
law is contrary to public policy, as that term is understood under
the laws of the Province of Ontario and the federal laws of Canada
applicable therein; provided, however, that, in matters of
procedure, the laws of the Province of Ontario will be applied, and
a Canadian Court will retain discretion to decline to hear such
action if it is contrary to public policy, as that term is
understood under the laws of the Province of Ontario and the federal
laws of Canada applicable therein, for such court to do so, or if
such court is not the proper forum to hear such an action or if
concurrent proceedings are being brought elsewhere; and in such
counsel's opinion, none of the provisions of the Indenture, the
Designated Securities or the Underwriting Agreement are contrary to
public policy, as that term is understood under the laws of the
Province of Ontario and the federal laws of Canada applicable
therein, except that rights of indemnity and contribution pursuant
to the Underwriting Agreement may be contrary to public policy; and
(xix) A Canadian Court would enforce a final and conclusive judgment
in personam of a New York Court that is subsisting and unsatisfied
respecting the enforcement of the Indenture, the Designated
Securities and the Underwriting Agreement that is not impeachable as
void or voidable under New York law for a sum certain if: (A) the
court rendering such judgment had jurisdiction over the judgment
debtor, as recognized by the courts of the Province of Ontario (and
submission by the Company to the jurisdiction of the New York
Court pursuant to the Indenture, the Designated Securities and the
Underwriting Agreement will be sufficient for this purpose); (B)
such judgement was not obtained by fraud or in a manner contrary to
natural justice and the enforcement thereof would not be
inconsistent with public policy, as such term is understood under
the laws of the Province of Ontario and the federal laws of Canada
as applicable therein; (C) the enforcement of such judgment does not
constitute, directly or indirectly, the en-
18
forcement of foreign revenue or penal laws; and (D) there has
been compliance with the Limitations Act (Ontario); except
that a Canadian Court may avoid the enforcement of judgments
relating to the rights of indemnity and contribution under the
Underwriting Agreement as being contrary to public policy;
and, in such counsel's opinion, there is some doubt as to the
enforceability in Canada, against the Company or against any
of its respective directors, officers and experts who are not
residents of the United States, by a court in original
actions, or in actions to enforce judgments of United States
courts, of civil liabilities predicated solely upon the United
States federal securities laws.
Such counsel shall also state that it has participated in discussions with
representatives of the Company, the Representatives, United States counsel to
the Company (if a firm other than Canadian counsel to the Company),
representatives of the independent auditors of the Company, and counsel for the
Underwriters at which the contents of the Shelf Prospectus were reviewed and
discussed and, although such counsel assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Shelf Prospectus or
any amendment thereto or supplement thereof, except as expressly stated in such
counsel's opinion pursuant to the requirements of this Section 7(c), such
counsel has no reason to believe that, the Shelf Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
reports thereon or schedules and other financial information contained therein
and the information therein relating to or describing the business of Noranda
Inc. and its subsidiaries, as to which such counsel need express no opinion), as
of its date or as of the Time of Delivery, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading; and they do not know of any amendment to
the Prospectus required to be filed with the Reviewing Authority or any
documents of a character required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Prospectus as amended or supplemented which are not filed or incorporated by
reference or described as required.
Such Canadian counsel may limit their opinion to the laws of Ontario and the
federal laws of Canada applicable therein and, to the extent such opinion
relates to the laws of the United States or the State of New York, may rely
exclusively upon the opinion of United States counsel to the Company delivered
pursuant to Section 7(d) hereof;
19
(d) The Company shall have furnished to the Representatives the written
opinion of Torys, United States counsel for the Company (or other United States
counsel reasonably satisfactory to the Representatives), dated the Time of
Delivery for the Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) To the best of such counsel's knowledge, and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending in the United States to which the Company, Brookfield Properties
Corporation, Great Lakes Power Inc. or Trilon Financial Corporation is a
party or of which any property of the Company, Brookfield Properties
Corporation, Great Lakes Power Inc. or Trilon Financial Corporation is the
subject which are of a character required by the Securities Act (Ontario)
and the rules and regulations adopted thereunder to be described or
referred to in the Prospectus, and no such proceedings are threatened by
governmental authorities or threatened by others;
(ii) Assuming the due authorization, execution and delivery of the
Underwriting Agreement under Canadian federal and Ontario law, the
Underwriting Agreement (to the extent that execution and delivery are
governed by the laws of New York) has been duly executed and delivered by
the Company;
(iii) Assuming the due authorization, execution, issuance and
delivery of the Designated Securities under Canadian federal and Ontario
law, and assuming the Designated Securities have been authenticated by the
Trustee, the Designated Securities (to the extent execution, issuance and
delivery are governed by the laws of New York) have been duly executed,
issued and delivered and constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with their
terms and entitled to the benefits provided by the Indenture, subject to
the qualification that enforcement (a) is subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
subject to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether enforcement is considered in a proceeding
in equity or at law) and (b) may be limited insofar as concerns Section
116 of the Indenture providing for the Company's indemnity against loss in
connection with obtaining a court judgment in another currency; and the
Designated Securities and the Indenture conform in all material respects
to the descriptions thereof in the Prospectus as amended or supplemented;
20
(iv) Assuming the due authorization, execution and delivery of the
Indenture under Canadian federal and Ontario law, and assuming the due
authorization, execution and delivery of the Indenture by the Trustee, the
Indenture (to the extent execution and delivery are governed by the laws
of New York) has been duly executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to the qualification
that enforcement (a) is subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to
the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and (b) may be limited insofar as concerns Section 116
of the Indenture providing for the Company's indemnity against loss in
connection with obtaining a court judgment in another currency; and the
Indenture has been duly qualified under the Trust Indenture Act;
(v) No consent, approval, authorization, order, registration,
clearance or qualification of or with any such court or governmental
agency or body of the United States is required for the issue and sale of
the Designated Securities or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement or the Indenture,
except such as have been obtained under the Securities Act and the Trust
Indenture Act and such consents, approvals, authorizations, orders,
registrations, clearance or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(vi) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be required to be registered as an
"investment company", as such term is defined in the Investment Company
Act;
(vii) The statements set forth in the Prospectus as amended or
supplemented under the caption "Certain United States Federal Income Tax
Considerations", insofar as they purport to summarize the provisions of
the laws and documents referred to therein, are accurate and fair
summaries in all material respects of the matters referred to therein;
21
(viii) The Registration Statement and the Prospectus, as amended or
supplemented, and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules therein and the
Form F-X of the Trustee, as to which such counsel need express no opinion)
appear on their face to be appropriately responsive in all material
respects with the requirements of the Act and the rules and regulations
thereunder; and they do not know of any amendment to the Registration
Statement required to be filed or any documents of the character required
to be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or supplemented
which are not filed or incorporated by reference as required.
(ix) Such counsel shall set forth in the body of such counsel's
opinion letter statements to the effect that (A) the Registration
Statement is effective under the Securities Act; (B) the Form F-X of the
Company and the Trustee were filed with the Commission prior to the
effectiveness of the Registration Statement; (C) any required filing of
the Prospectus or any supplement thereto was made in accordance with
General Instruction II.K. of Form F-9; and (D) such counsel was informed
telephonically by a member of the staff of the Commission at approximately
5:30 p.m. on the day prior to the Time of Delivery that there are no stop
orders suspending the effectiveness of the Registration Statement.
Such counsel shall state that, although they do not assume any responsibility
for the accuracy, completeness or fairness of any of the statements made in the
Registration Statement or Prospectus, except as set forth in subparagraph (vii)
hereof, no facts came to their attention which gave such counsel reason to
believe that (a) the Registration Statement as amended or supplemented and any
further amendments and supplements thereto made by the Company prior to the Time
of Delivery for the Designated Securities (other than the financial statements
and other financial data contained therein or omitted therefrom, as to which
such counsel need express no opinion), as of the effective date thereof,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (b) the Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the financial statements and
other financial data contained therein or omitted therefrom, as to which such
counsel need express no opinion), as of its date or as of the Time of Delivery,
contained or contains an untrue statement of a material fact or omitted or omits
to state a
22
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may assume, to the extent such opinion
relates to the laws of Ontario and the federal laws of Canada applicable
therein, that the matters set forth in the opinion of Canadian counsel to the
Company delivered pursuant to Section 7(c) hereof are accurate and correct;
(e) The Company shall have furnished to the Representatives the written
opinion of XxXxxxxx Xxxxxxxx, counsel for Noranda Inc., dated the Time of
Delivery for the Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that, solely with respect to the information
therein relating to Noranda Inc., although such counsel assumes no
responsibility for the accuracy, completeness or fairness of statements
contained in the Registration Statement or the Prospectus, no facts have come to
the attention of such counsel which would lead such counsel to believe that, as
of its effective date, the Registration Statement or any further amendment
thereto (other than the financial statements and related reports thereon or
schedules and other financial information contained therein), made by the
Company prior to the Time of Delivery contained an untrue statement of a
material fact (which, for the purpose of this clause, has the meaning ascribed
thereto in the OSA) or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than the
financial statements and related reports thereon or schedules and other
financial information contained therein), as of its date or as of the Time of
Delivery, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading;
(f) On the date of the Underwriting Agreement and at the Time of
Delivery for the Designated Securities, Deloitte & Touche LLP, chartered
accountants, shall have furnished to the Representatives a letter, dated the
date of delivery of such letter to the effect set forth in Annex I hereto, and
with respect to such letter dated such Time of Delivery, as to such other
matters of the type ordinarily included in "comfort letters" from accountants to
underwriters as the Representatives may reasonably request and in form and
substance reasonably satisfactory to the Representatives;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the most recent audited consolidated financial
statements included or incorporated by reference in the Prospectus any loss or
23
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus and,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, there shall not have been any change in the capital stock of the
Company (other than pursuant to stock dividends, conversions of securities,
employee stock options and other employee benefit plans and agreements described
or referred to in the Prospectus as amended or supplemented), any increase in
the long-term debt of the Company and its subsidiaries on a consolidated basis,
except as provided for in the Underwriting Agreement, or any change, or any
development or event involving a prospective change, in or affecting the general
affairs, business, properties, management, financial position or results of
operations of the Company and its subsidiaries on a consolidated basis,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in Clause (i) or
(ii), is in the reasonable judgment of the Representatives so material and
adverse to the Company and its subsidiaries on a consolidated basis as to make
it impractical or inadvisable to proceed with the completion of the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(h) On or after the date of the Underwriting Agreement and at or prior
to the Time of Delivery (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by Xxxxx'x Investors Service, Inc.,
Standard & Poor's Ratings Group, a division of McGraw Hill Inc., Canadian Bond
Rating Services, Inc. or Dominion Bond Rating Service Limited, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(i) On or after the date of the Underwriting Agreement and at or prior
to the Time of Delivery there shall not have occurred any of the following: (i)
any change in U.S., Canadian or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Underwriters including the
Representative[s], be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Designated Securities, whether in the primary
market or in respect of dealings in the secondary market; (ii) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange or The Toronto Stock Exchange, or a suspension or material
limitation in trading in the Company's securities on the New York Stock Exchange
or The
24
Toronto Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iii) any banking moratorium
declared by U.S. Federal, New York or Canadian authorities; (iv) any major
disruption of settlements of securities or clearance services in the United
States or Canada or (v) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States or Canada, any declaration of war
by Congress or any other national or international calamity or emergency if, in
the judgment of a majority in interest of the Underwriters including the
Representative[s], the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Designated Securities; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company reasonably satisfactory
to the Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the performance
by the Company of all of its obligations pursuant to the Underwriting Agreement
to be performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (g) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement, in
reliance upon and in
25
conformity with written information furnished to the Company by or on behalf of
any Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Designated Securities to a person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by the
Securities Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or liability
of such Underwriter results from an untrue statement contained in, or omission
of a material fact from, the Preliminary Prospectus which was corrected in the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
26
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action, shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it may elect by written
notice delivered to such indemnified party promptly after receiving the
aforesaid notice from the, indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party shall have
the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action, (ii) such
indemnified party shall have been advised by counsel that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party
with respect to such different or additional defenses), in any of which events
such fees and expenses shall be borne by the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
Indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in
27
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other in connection with
the offering of the Designated Securities to which such losses, claims, damages
or liabilities relate shall be deemed to be in the same proportion as the total
net proceeds from such offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
such Underwriters in respect thereof. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same
28
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Underwriting Agreement, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Designated
Securities on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used herein and in the Underwriting Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Underwriting Agreement.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Underwriting
Agreement and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Underwriting
Agreement) of the Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
29
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Underwriting Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in these Standard Provisions or made by or on behalf of them,
respectively, pursuant to the Underwriting Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
11. If the Underwriting Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter except as provided in Section 6 and Section 8 hereof; but, if the
Underwriting Agreement shall be terminated by the Underwriters or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfil any of the conditions of the Underwriting Agreement, or if
for any reason the Company shall be unable to perform its obligations under the
Underwriting Agreement, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Designated Securities, but the Company shall then be under no
further liability to any Underwriter except as provided in Section 6 and Section
8 hereof.
12. In all dealings pursuant to the Underwriting Agreement, the
Representatives shall act on behalf of each of the Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by the Representatives
30
jointly or by such of the Representatives, if any, as may be designated for such
purpose in the Underwriting Agreement.
All statements, requests, notices and agreements pursuant to the
Underwriting Agreement shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Representatives as set forth in the Underwriting Agreement, and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter as its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. The Underwriting Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of the
Underwriting Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of the Underwriting Agreement.
As used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business; provided that, with respect to filings
to be made with the Reviewing Authority, "business day" shall mean any day when
the Reviewing Authority's office in Toronto is open for business.
15. The Underwriting Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
16. In respect of any judgment or order given or made for any
amount due hereunder that is expressed and paid in a currency (the "judgment
currency") other than United States dollars, the indemnifying party will
indemnify each indemnified party or other person to whom such amount is due
against any loss incurred by such indemnified party or other person, as the case
may be, as a result of any variation as between (i) the rate of exchange at
which the currency amount of the country of the indemnified party is converted
into the judgment currency for the purpose of such judgment or order and (ii)
the rate of exchange at which such indemnified party or other person, as the
case may be, is able to
31
purchase the currency, of the country of the indemnified party with the amount
of the judgment currency actually received by such indemnified party or other
person, as the case may be. The foregoing indemnity shall constitute a separate
and independent obligation of each indemnifying party and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into the currency of the
country of the indemnified party.
17. The Company hereby irrevocably agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transaction contemplated hereby may be instituted in any state or federal court
in The City of New York and in the respective courts of each party's own
corporate (or, in the case of the Underwriters, partnership) domicile with
respect to actions brought against it, hereby irrevocably waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding in any state or federal court
in The City of New York and hereby irrevocably submits to the jurisdiction of
such courts in any such suit, action or proceeding. The Company hereby appoints
CT Corporation System, 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the transaction
contemplated hereby which may be instituted in any state or federal court in The
City of New York, expressly consents to the jurisdiction of any such court in
respect of any such action and waives any other requirements of or objections to
personal jurisdiction with respect thereto and designates its domicile, the
domicile of CT Corporation System specified above and any domicile that CT
Corporation System may have in the future as its domicile to receive any notice
hereunder (including service of process). Such appointment shall be irrevocable.
If for any reason CT Corporation System (or any successor agent for this
purpose) shall cease to act as agent for service of process as provided above,
the Company will promptly appoint a successor agent for this purpose reasonably
acceptable to the Representatives. The Company represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process, and the
Company agrees to take any and all action, including the filing of any and all
documents and instruments in full force and effect, as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the
Company shall be deemed, in every respect, effective service of process upon the
Company.
18. The Underwriting Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which,
when so executed and delivered, shall be deemed to be an original, but all
32
such respective counterparts shall together constitute one and the same
instrument.
33
ANNEX I
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(f) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are the auditors of the Company and are independent as
required by the OSA, the Securities Act and the applicable rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respect with the applicable
accounting requirements of the OSA, the Securities Act and the related
published rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with Canadian generally accepted auditing standards,
consisting of the performance of procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial statements as described in SAS No. 71, a reading of the
unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and procedures
as may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited interim consolidated statement of
financial position and the consolidated statements of earnings, and
changes in financial position included or incorporated by reference
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the OSA, the
Securities Act and the applicable rules and regulations thereunder
or are not presented, in all material respects, in accordance with
Canadian generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited consolidated
balance sheets and the consolidated statements of earnings and
A - 1
retained earnings, and changes in financial position included in the
Company's Annual Information Form for the most recent fiscal year;
or (ii) any material modifications should be made to the unaudited
interim consolidated statement of financial position and the
consolidated statements of earnings, and changes in financial
position included or incorporated by reference in the Prospectus for
them to be in conformity with Canadian generally accepted accounting
principles;
(B) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock or in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or net assets or stockholders' equity or other
items specified by the representatives of the Underwriters (the
"Representatives"), or by any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(C) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (B) there were any
decreases in consolidated net revenues or operating profit or in the
total or per share amounts of consolidated net income or other items
specified by the Representative, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increase or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter
and;
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
Canadian generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representative, which appear in the Prospectus or in documents
incorporated by reference in the Prospectus,
A - 2
and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex I to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Underwriting Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
X- 0
