SHAW COMMUNICATIONS INC. (an Alberta corporation) $600,000,000 6.50 % Senior Notes due June 2, 2014 UNDERWRITING AGREEMENT
Exhibit 99.1
XXXX COMMUNICATIONS INC.
(an Alberta corporation)
$600,000,000 6.50 % Senior Notes due June 2, 2014
Dated: as of March 24, 2009
Table of Contents
Section 1. Representations and Warranties |
3 | ||||
(a) Representations and Warranties by the Company |
3 | ||||
(b) Officer’s Certificates |
14 | ||||
Section 2. Sale and Delivery to Underwriters; Closing |
14 | ||||
(a) Securities |
14 | ||||
(b) Payment |
14 | ||||
(c) Denominations; Registration |
15 | ||||
Section 3. Covenants of the Company |
15 | ||||
(a) Compliance with Securities Regulations and Commission Requests |
15 | ||||
(b) Filing of Amendments |
16 | ||||
(c) Delivery of Filed Documents |
17 | ||||
(d) Delivery of Prospectuses |
17 | ||||
(e) Blue Sky Qualifications |
18 | ||||
(f) Rule 158 |
18 | ||||
(g) Use of Proceeds |
18 | ||||
(h) French Version of the Canadian Preliminary Prospectus and the Canadian Final Prospectus |
18 | ||||
Section 4. Payment of Expenses |
19 | ||||
(a) Expenses |
19 | ||||
(b) Termination of Underwriting Agreement |
20 | ||||
Section 5. Conditions of Underwriters’ Obligations |
20 | ||||
(a) Effectiveness of Registration Statement |
20 | ||||
(b) Opinion of Canadian Counsel for Company |
21 | ||||
(c) Opinion of U.S. Counsel for Company |
21 | ||||
(d) Opinion of Canadian Counsel for Underwriters |
21 | ||||
(e) Opinion of U.S. Counsel for Underwriters |
22 | ||||
(f) Opinion of Regulatory Counsel |
22 | ||||
(g) Officers’ Certificate |
22 | ||||
(h) Accountants’ Comfort Letter |
23 | ||||
(i) Bring-down Comfort Letter |
23 | ||||
(j) Maintenance of Rating |
23 | ||||
(k) Additional Documents |
23 | ||||
(l) Termination of Underwriting Agreement |
24 | ||||
Section 6. Indemnification |
24 | ||||
(a) Indemnification of Underwriters |
24 | ||||
(b) Indemnification of Company, Directors and Officers |
25 | ||||
(c) Actions against Parties; Notification |
26 | ||||
(d) Settlement without Consent if Failure to Reimburse |
26 | ||||
Section 7. Contribution |
27 | ||||
Section 8. Representations, Warranties and Agreements to Survive Delivery |
28 | ||||
Section 9. Termination of Underwriting Agreement |
28 |
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(a) Termination; General |
28 | |||
(b) Liabilities |
29 | |||
Section 10. Default by One or More of the Underwriters |
29 | |||
Section 11. Agent for Service; Submission to Jurisdiction; Waiver of Immunities |
30 | |||
Section 12. Notices |
31 | |||
Section 13. Authority of Lead Underwriters |
31 | |||
Section 14. Parties |
31 | |||
Section 15. Governing Law and Time |
31 | |||
Section 16. Effect of Headings |
32 | |||
Section 17. Entire Agreement |
32 | |||
Section 18. Counterparts |
32 | |||
Section 19. Electronic Execution |
32 | |||
SCHEDULES |
||||
Schedule A — List of Underwriters |
Sch A-1 | |||
Schedule B — Pricing Information |
Sch B-1 | |||
Schedule C — Term Sheet |
Sch C-1 | |||
EXHIBITS |
||||
Exhibit A — Form of Opinion of Canadian Counsel for the Company |
A-1 | |||
Exhibit B — Form of Opinion of U. S. Counsel for the Company |
B-1 | |||
Exhibit C — Form of Opinion of U.S. Counsel for the Underwriters |
C-1 | |||
Exhibit D — Form of Opinion of Special Regulatory Counsel for the Company |
D-1 | |||
March 24, 2009
Xxxx Communications Inc.
Xxxxx 000, 000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Xxxxx 000, 000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
| Attention: | Xxxxx Xxxxxx, Senior Vice President and Chief Financial Officer |
Dear Sirs/Mesdames:
The undersigned, TD Securities Inc. and the Underwriters listed in Schedule A
(collectively, the “Underwriters” and individually an “Underwriter”), understand that Xxxx
Communications Inc. (the “Company”) proposes to raise funds by the creation and issue of
$600,000,000 aggregate principal amount of 6.50% Senior Notes due June 2, 2014 (the
“Securities”) on the terms set out in Schedule B. The Securities will be unsecured senior
obligations and will rank equally and rateably with all existing and future unsecured and
unsubordinated indebtedness of the Company and are further described and will have the
attributes substantially as outlined in the English and French language versions of the
Canadian Final Prospectus (as defined below) and as outlined in the U.S. Final Prospectus
(as defined below) of the Company filed in respect of the issue and sale of the Securities.
The Securities are to be issued pursuant to an indenture entered into between the Company
and Computershare Trust Company of Canada, as trustee (the “Trustee”), dated February 27,
2007, as supplemented by a series supplemental indenture dated as of the Closing Date (as
defined below) (the “Supplemental Indenture” and the indenture, as supplemented by the
Supplemental Indenture, the “Indenture”).
Subject to the terms and conditions herein set forth, the Underwriters severally offer
to purchase from the Company at the Closing Time, and, by its acceptance hereof, the Company
agrees to issue and sell at such time to the Underwriters, all but not less than all of the
Securities in consideration for the Purchase Price (as defined in Schedule B hereto) plus
accrued interest, if any, from March 27, 2009 to the date of delivery of the Securities.
In consideration of the Underwriters’ agreement to purchase the Securities which will
result from the Company’s acceptance of this offer, and in consideration of the services
rendered and to be rendered by the Underwriters in connection therewith, including but not
limited to: acting as financial advisors to the Company; assisting in the preparation of the
Canadian Final Prospectus and the Registration Statement and related documentation in order
to qualify the Securities for sale in Canada and register the sale of the Securities in the
United States; selling the Securities to the public both directly and through other dealers
and brokers; and performing administrative work in connection with the sale of the
Securities,
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you agree to pay to TD Securities Inc. or as it may direct, on behalf of the
Underwriters, a fee of 0.625 per cent of the aggregate principal amount of the Securities
(the “Underwriting Commission”). 10 per cent of the Underwriting Commission will be paid to
TD Securities Inc. with the remaining 90 per cent being divided among the Underwriters pro
rata based on the percentages noted in Schedule A hereof.
Payment of the Purchase Price for the Securities by the Underwriters will be made by
wire transfer to accounts designated by the Company (which accounts will be designated at
least one day in advance of the Closing Date) against payment of the Underwriting Commission
by the Company and delivery of the Securities in global, fully registered form for deposit
in the book-entry only system administered by The Canadian Depository for Securities Limited
(“CDS”) at the Closing Time at the offices of counsel to the Company in Calgary, Alberta.
The Company has prepared and filed a preliminary short form base shelf prospectus and a
final short form base shelf prospectus in respect of $2,500,000,000 aggregate principal
amount of the Company’s debt securities, class B non-voting participating shares, class 1
preferred shares, class 2 preferred shares, warrants, share purchase contracts, and units
(the “Shelf Securities”) (in the English and French languages, as applicable) with the
Alberta Securities Commission (the “Reviewing Authority”) and with the securities regulatory
authorities (the “Qualifying Authorities”) in each of the other provinces of Canada (the
“Qualifying Provinces”). The Company has filed the preliminary short form base shelf
prospectus and the final short form base shelf prospectus with the Reviewing Authority and
the Qualifying Authorities (i) pursuant to the procedures for prospectus review in multiple
jurisdictions provided for under National Policy 11-202 — Process for Prospectus Reviews in
Multiple Jurisdictions and Multilateral Instrument 11-102 — Passport System (collectively,
the “Prospectus Review Procedures”), and the Reviewing Authority is acting as principal
regulator, and (ii) in accordance with the rules and procedures established under the
securities laws, rules, regulations and published policy statements applicable in the
Provinces of Canada (the “Canadian Securities Law”) and National Instrument 44-101 — Short
Form Prospectus Distributions and Companion Policy 44-101CP and National Instrument 44-102 -
Shelf Distributions and Companion Policy 44-102CP (collectively, the “Shelf Procedures”).
The Reviewing Authority has issued receipts under the Prospectus Review Procedures for each
of such preliminary short form base shelf prospectus and such final short form base shelf
prospectus (such final short form base shelf prospectus, in the form heretofore delivered to
the Underwriters, and in respect of which the final receipt under the Prospectus Review
Procedures was issued, as amended to the date hereof, including all documents incorporated
by reference therein, the “Canadian Base Prospectus”). The term “Canadian Preliminary
Prospectus” means the preliminary prospectus supplement relating to the offering of the
Securities filed with the Reviewing Authority and the Qualifying Authorities prior to the
date and time that this Underwriting Agreement is executed and delivered by the parties
hereto (the “Execution Time”), together with the Canadian Base Prospectus, including all
documents incorporated therein by reference. The term “Canadian Final
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Prospectus” means the final prospectus supplement relating to the offering of the
Securities filed with the Reviewing Authority and the Qualifying Authorities after the
Execution Time, together with the Canadian Base Prospectus, including all documents
incorporated therein by reference.
The Company has filed with the United States Securities and Exchange Commission (the
“Commission”) a registration statement on Form F-10 (No. 333-157639) under the United
States Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations of
the Commission thereunder (the “1933 Act Regulations”), in respect of the Shelf Securities,
and such registration statement, which includes the Canadian Base Prospectus (with such
deletions therefrom and additions thereto as are permitted or required by Form F-10 and the
applicable rules and regulations of the Commission), in the form heretofore delivered to the
Underwriters, including exhibits thereto and all documents incorporated by reference in the
Canadian Base Prospectus contained therein, has become effective pursuant to Rule 467(a)
under the 1933 Act. Such registration statement, including any exhibits thereto and all
documents incorporated by reference therein at the time such registration statement became
effective, is referred to herein as the “Registration Statement”. The base prospectus
included in the Registration Statement relating to the Shelf Securities is referred to
herein as the “U.S. Base Prospectus”; the U.S. Base Prospectus, together with any
preliminary prospectus supplement relating to the offering of the Securities filed with the
Commission pursuant to General Instruction II.L of Form F-10 prior to the Execution Time, is
referred to herein as the “U.S. Preliminary Prospectus”; and the U.S. Base Prospectus,
together with the final prospectus supplement relating to the offering of the Securities
filed with the Commission pursuant to General Instruction II.L of From F-10 after the
Execution Time, is referred to herein as the “U.S. Final Prospectus”.
The Company has prepared and filed with the Commission an appointment for agent for
service of process upon the Company on Form F-X in connection with the filing of the
Registration Statement (the “Form F-X”).
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Company.
The Company represents and warrants to each Underwriter and agrees with each
Underwriter as follows (representations and warranties in this Section 1(a) relating to the
“U.S. Prospectus” are to (a) the Disclosure Package (as defined below) as of the Execution
Time and (b) the U.S. Final Prospectus as of its date and as of the Closing Date; and
representations and warranties in this Section 1(a) relating to the “Canadian Prospectus”
are to (x) the Canadian Preliminary Prospectus (as supplemented by the final term sheet in
the form attached hereto as Schedule C) as of the Execution Time and (y) the Canadian Final
Prospectus as of its date and as of the Closing Date):
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(i) Prospectus Review Procedures; Effectiveness; No Stop Order. The Company
meets the general eligibility requirements for use of Form F-10 under the 1933 Act and has
prepared and filed the Registration Statement and the Form F-X with the Commission. The
Registration Statement has become effective under the 1933 Act and the Company has filed the
U.S. Preliminary Prospectus with the Commission. The Company is qualified to file a short
form prospectus that is a base shelf prospectus pursuant to the Shelf Procedures and is
eligible to file a short form prospectus with the Reviewing Authority and the Qualifying
Authorities. Receipts issued under the Prospectus Review Procedures have been obtained from
the Reviewing Authority in respect of the Canadian Base Prospectus. The Canadian
Preliminary Prospectus has been filed with the Reviewing Authority and the Qualifying
Authorities. No order preventing or suspending the distribution of the Securities has been
issued by the Reviewing Authority or any Qualifying Authority and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Reviewing Authority or any Qualifying Authority; and no stop order
suspending the effectiveness of the Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
(ii) Compliance with U.S. and Canadian Securities Laws. (A) Each document
filed or to be filed with the Reviewing Authority and the Qualifying Authorities and
incorporated by reference in the Canadian Preliminary Prospectus and the Canadian Final
Prospectus complied or will comply when so filed in all material respects with the
requirements of Canadian Securities Law and the Shelf Procedures as interpreted and applied
by the Reviewing Authority and none of such documents contained or will contain an untrue
statement of a material fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (B) the Canadian
Preliminary Prospectus and the U.S. Preliminary Prospectus, in each case together with any
documents made publicly available in connection therewith and all documents incorporated by
reference therein, have previously been made available or will have been delivered to the
Underwriters or counsel for the Underwriters and no other document with respect to the
Canadian Base Prospectus or the Registration Statement, any amendment thereto or any
document incorporated by reference therein has been or will be filed or transmitted for
filing with the Reviewing Authority or any Qualifying Authority or the Commission by or on
behalf of the Company, except as provided in Section 3(a) hereof; (C) on the date the U.S.
Base Prospectus was filed, and at the Closing Time, the U.S. Base Prospectus conformed, and
will conform, to the Canadian Base Prospectus, as of the date hereof and at the Closing
Time, the U.S. Preliminary Prospectus conforms and will conform to the Canadian Preliminary
Prospectus, and as of its filing date and at the Closing Time, the U.S. Final Prospectus
will conform to the Canadian Final Prospectus, except in all cases for such deletions
therefrom and additions thereto as are permitted or required by Form F-10 and
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the applicable rules and regulations of the Commission; (D) each document, if any,
filed or to be filed pursuant to the United States Securities Exchange Act of 1934, as
amended (the “1934 Act”), and incorporated by reference in the U.S. Base Prospectus, the
U.S. Preliminary Prospectus or the U.S. Final Prospectus complied or will comply when so
filed in all material respects with the 1934 Act and the applicable rules and regulations of
the Commission thereunder; (E) the Registration Statement, when it became effective and at
the Closing Time, the U.S. Preliminary Prospectus and the Canadian Preliminary Prospectus,
as of the Execution Time, and the U.S. Final Prospectus and the Canadian Final Prospectus,
as of their dates and as of the Closing Time, complied, and will comply, in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the
US Trust Indenture Act of 1939, as amended (the “1939 Act”), and the rules and regulations
of the Commission under the 1939 Act (the “1939 Act Regulations”) and Canadian Securities
Law, as applicable; (F) the information and statements contained in the Canadian Preliminary
Prospectus, as of the Execution Time, constitute full, true and plain disclosure of all
material facts relating to the Securities offered, and the information and statements
contained in the Canadian Final Prospectus, as of its date and as of the Closing Time, will
constitute full, true and plain disclosure of all material facts relating to the Securities
offered; (G) the Registration Statement, at the time it became effective and as of the
Execution Time, did not and does not contain any 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; (H) neither the Disclosure Package nor the Canadian Preliminary
Prospectus (as supplemented by the final term sheet in the form attached hereto as Schedule
C), as of the Execution Time, contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and neither the U.S. Final
Prospectus nor the Canadian Final Prospectus, as of their dates and as of the Closing Time,
will contain any 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; except that the representations and warranties set forth in this
Section 1(a)(ii) do not apply to statements in or omissions from the Registration Statement,
the U.S. Preliminary Prospectus, the U.S. Final Prospectus, the Disclosure Package, any
electronic roadshow, the Canadian Preliminary Prospectus or the Canadian Final Prospectus
based upon information relating to an Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein. “Disclosure Package” shall mean the U.S.
Preliminary Prospectus, as supplemented by the final term sheet in the form attached hereto
as Schedule C.
(iii) Independent Accountants. Ernst & Young LLP, who are reporting upon the
audited consolidated financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, the U.S. Prospectus and the
Canadian Prospectus, are the auditors of the Company and its subsidiaries, are independent
within the meaning of securities legislation of the Qualifying Provinces and
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are independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Filings in Canada/U.S. Except for the Canadian Prospectus, the U.S.
Prospectus and the Registration Statement, and any documents required to be filed in
connection therewith: (A) there are no reports or information that in accordance with the
requirements of the Reviewing Authority or any Qualifying Authority must be made publicly
available in connection with the offering of the Securities that have not been made publicly
available as required; (B) there are no documents required to be filed with the Reviewing
Authority or any Qualifying Authority or with any other Canadian securities regulatory
authority in connection with the Canadian Prospectus that have not been filed as required;
and (C) there are no contracts, documents or other materials required to be described or
referred to in the Registration Statement or the U.S. Prospectus or to be filed as exhibits
to the Registration Statement that are not described, referred to or filed as required.
(v) Financial Statements. The financial statements of the Company and its
subsidiaries included or incorporated by reference in the U.S. Prospectus and the Canadian
Prospectus, together with the related schedules and notes, present fairly, in all material
respects, the consolidated financial position of the Company and its consolidated
subsidiaries, at the dates indicated and for the periods specified; said financial
statements have been prepared in conformity with Canadian generally accepted accounting
principles (“Canadian GAAP”) applied on a consistent basis throughout the periods involved
and the consolidated financial statements of the Company in the U.S. Prospectus have been
reconciled to generally accepted accounting principles in the United States of America
(“U.S. GAAP”) in accordance with Item 18 of Form 20-F under the 1934 Act. The supporting
schedules, if any, included or incorporated by reference in the U.S. Prospectus and the
Canadian Prospectus present fairly, in all material respects, the information required to be
stated therein.
(vi) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the U.S. Prospectus, the Canadian Prospectus and the
Supplementary Material (as defined below), except as otherwise stated or incorporated by
reference therein, (A) there has been no material adverse change in or affecting the
condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (B) there have been no transactions entered into
by the Company or any of its subsidiaries which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for regular dividends on the
Company’s Class A Participating Shares and Class B Non-Voting Participating Shares in
amounts per share that are consistent with past practice (with such increases as have been
publicly announced prior to the date hereof) or in connection with the Company’s previously
announced normal course issuer bids, there has been no dividend or
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distribution of any kind declared, paid or made by the Company on any class of its
capital stock. Any auxiliary material, information, evidence, return, report, application,
statement or document that may be filed by or on behalf of the Company under Canadian
Securities Law prior to the Closing Time or, where such document is deemed to be
incorporated by reference into the Canadian Final Prospectus or U.S. Final Prospectus, prior
to the expiry of the period of distribution of the Securities, is referred to herein
collectively as the “Supplementary Material”.
(vii) Good Standing of the Company. The Company has been duly organized and is
a valid and subsisting corporation under the laws of the Province of Alberta, has the
corporate power and corporate capacity to own, lease and operate its properties and to
conduct its business as described in the U.S. Prospectus and the Canadian Prospectus and to
enter into and perform its obligations under this Underwriting Agreement; and the Company is
duly qualified as an extra-provincial or foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a material adverse
effect on the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a “Material Adverse Effect”).
(viii) Good Standing of Subsidiaries. Each of Xxxx Cablesystems Limited, Xxxx
Cablesystems G.P., Videon Cablesystems Inc., Xxxx Satellite Services Inc. and Star Choice
Television Network Incorporated is a “significant subsidiary” of the Company (as such term
is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and, collectively, the
“Subsidiaries”); such Subsidiaries are the only “significant subsidiaries” of the Company;
and each of such Subsidiaries has been duly amalgamated, incorporated or formed and is a
valid and subsisting corporation or partnership in good standing under the laws of the
jurisdiction of its incorporation or formation, has the requisite power and authority to
own, lease and operate its properties and to conduct its business as described in the U.S.
Prospectus and the Canadian Prospectus and is duly qualified as a foreign or
extra-provincial corporation or partnership to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the U.S. Prospectus and the Canadian Prospectus, all of the issued
and outstanding capital stock, or partnership interests, as applicable, of each such
Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or indirectly, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock, or partnership interests,
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as applicable, of any Subsidiary were issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary.
(ix) Capitalization. The issued and outstanding share capital of the Company
is as set forth in the U.S. Prospectus and the Canadian Prospectus under the caption
“Capitalization” (except for subsequent issuances of shares, if any, pursuant to
reservations, agreements, share provisions or employee benefit plans referred to in the U.S.
Prospectus and the Canadian Prospectus or pursuant to the exercise of convertible securities
or options referred to in the U.S. Prospectus and the Canadian Prospectus and subsequent
purchases of shares pursuant to the Company’s previously announced normal course issuer
bids). The shares of issued and outstanding capital of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the outstanding
shares in the capital of the Company were issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(x) Authorization of Underwriting Agreement. This Underwriting Agreement has
been duly authorized, executed and delivered by the Company.
(xi) Authorization of the Indenture. The Indenture has been duly authorized by
the Company and duly qualified under the 1939 Act and the 1939 Act Regulations and, at the
Closing Time, the Supplemental Indenture will have been duly executed and delivered by the
Company and the Trustee and the Indenture will constitute a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization, moratorium
or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); no registration, filing or
recording of the Indenture under the laws of Canada or any province thereof is necessary in
order to preserve or protect the validity or enforceability of the Indenture or the
Securities issued thereunder.
(xii) Authorization of the Securities. The Securities have been duly authorized
and, at the Closing Time, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the Indenture and
delivered against payment of the Purchase Price therefor as provided in this Underwriting
Agreement, will constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
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considered in a proceeding in equity or at law), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
(xiii) Description of the Securities and the Indenture. The Securities and the
Indenture will conform in all material respects to the respective statements relating
thereto contained in the U.S. Prospectus and the Canadian Prospectus and will be in the form
contemplated by the Indenture, filed, or to be filed, with the Commission.
(xiv) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its constating documents or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
license or other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively, “Agreements and
Instruments”) except for such defaults that would not result individually or in the
aggregate in a Material Adverse Effect; and the execution, delivery and performance of this
Underwriting Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated herein and in the U.S. Prospectus and the Canadian Prospectus
(including the issuance and sale of the Securities and the use of the proceeds from the sale
of the Securities as described in the U.S. Prospectus and the Canadian Prospectus under the
caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder and
under the Indenture do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or a default or Repayment
Event (as defined below) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its subsidiaries or
pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not result individually or in the aggregate in
a Material Adverse Effect), nor will such action result in any violation of the provisions
of the constating documents or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations which violation
would result in a Material Adverse Effect. As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of the subsidiaries.
(xv) Absence of Labour Dispute. No labour dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labour disturbance by the employees of any
of its or any subsidiary’s principal suppliers, manufacturers, customers
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or contractors, which, in either case, may reasonably be expected to result in a
Material Adverse Effect.
(xvi) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary individually or in the aggregate which is required to be
disclosed in the U.S. Prospectus or the Canadian Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the properties or
assets of the Company and its subsidiaries considered as one enterprise or the consummation
of the transactions contemplated in this Underwriting Agreement or the Indenture or the
performance by the Company of its obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property or assets is the subject which are not
described in the U.S. Prospectus and the Canadian Prospectus, including ordinary routine
litigation incidental to the business of the Company, could not reasonably be expected to
result individually or in the aggregate in a Material Adverse Effect.
(xvii) Possession of Intellectual Property. The Company and its subsidiaries
possess, license or can acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), patents,
patent rights, licenses, copyrights, and other intellectual property (collectively,
“Intellectual Property”) necessary to conduct the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of its subsidiaries
therein, where such infringement or conflict (if the subject of any unfavourable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in
a Material Adverse Effect.
(xviii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this
Underwriting Agreement or for the due execution, delivery or performance of the Indenture by
the Company, except (A) such as have already been obtained or as may be required under the
1933 Act or the 1933 Act Regulations or state securities laws and
- 11 -
except for the qualification of the Indenture under the 1939 Act and (B) such as have
been obtained or may be required under Canadian Securities Law.
(xix) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the Canadian Radio-television and Telecommunications
Commission or other appropriate federal, provincial, territorial, state, local or foreign
regulatory agencies or bodies necessary to own, lease, license and use its properties and
assets and to conduct the business now operated by them, except where the failure to possess
Governmental Licenses would not have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the aggregate, have
a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavourable decision, ruling or
finding, would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
such as (A) are described in the U.S. Prospectus and the Canadian Prospectus or (B) do not,
singly or in the aggregate, materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and (i) all of the leases and subleases related to the
business of the Company or any of its subsidiaries, and under which the Company or any of
its subsidiaries holds properties described in the U.S. Prospectus and the Canadian
Prospectus, are in full force and effect, and (ii) neither the Company nor any subsidiary
has any notice of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or sublease,
in each case except where the failure of such leases or subleases to be in full force and
effect would not have a Material Adverse Effect.
(xxi) Investment Company Act. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the U.S. Prospectus and the Canadian Prospectus will not be, an
“investment company” or an entity “controlled” by an “investment company” as such
- 12 -
terms are defined in the U.S. Investment Company Act of 1940, as amended (the “1940 Act”).
(xxii) Environmental Laws. Except as disclosed in the U.S. Prospectus and the
Canadian Prospectus, and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, provincial, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”),
(B) the Company and its subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company’s knowledge, threatened, administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxiii) Disclosure Controls and Procedures. The Company maintains disclosure
controls and procedures as required by Rule 13a-15 or Rule 15d-15 under the 1934 Act and as
contemplated by the certifications required under Form 52-109F1 and Form 52-109F2 under
Multilateral Instrument 52-109 – Certification of Disclosure in Issuer’s Annual and Interim
Filings (“MI 52-109”), and such controls and procedures are effective to ensure that all
material information concerning the Company is made known, on a timely basis, to the
individuals responsible for the preparation of the Company’s filings with the Commission and
the Qualifying Authorities.
(xxiv) Internal Controls. The Company maintains systems of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management’s general or specific
- 13 -
authorization;
and (D) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The
Company is not aware of (x) any significant deficiency and material weaknesses in the design
or operation of internal control over financial reporting (as such term is defined by Rules
13a-15(f) and 15d-15(f) under the 1934 Act and, in Canada, under MI 52-109) which are
reasonably likely to adversely affect the Company’s ability to record, process, summarize
and report financial information or (y) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s internal controls
over financial reporting.
(xxv) SOX Compliance. The Company has complied in all material respects with
the Xxxxxxxx-Xxxxx Act of 2002, as applicable to the Company as at the date hereof, and the
corporate governance rules of the New York Stock Exchange and the Toronto Stock Exchange, as
applicable to the Company as at the date hereof, and Canadian Securities Law, and, to the
knowledge of the Company, the Company’s directors and executive officers, in their
capacities as such, have complied in all material respects with the Xxxxxxxx-Xxxxx Act of
2002, as applicable to the Company as at the date hereof, and the corporate governance
rules of the New York Stock Exchange and the Toronto Stock Exchange and Canadian Securities
Law.
(xxvi) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a material violation by such persons of such of the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder as are applicable to it (the
“FCPA”), including, without limitation, but only to the extent that the FCPA is applicable
to the Company, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company, its subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses in material
compliance with the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure, continued material
compliance therewith.
(xxvii) The operations of the Company and its subsidiaries are and have been conducted
at all times in material compliance with such financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency as are applicable to it (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or
- 14 -
governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxviii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company or any
of its subsidiaries delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) Securities.
On the basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment.
Payment of the Purchase Price for, and delivery of certificates for, the Securities
shall be made at the offices of Fraser Xxxxxx Casgrain LLP, 30th Floor, Fifth
Avenue Place, 237-4th Avenue S.W., Calgary, Alberta T2P 4X7, or at such other
place as shall be agreed upon by the Underwriters and the Company, at 9:00 A.M. (Eastern
time) on March 27, 2009, or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters and the Company (such time and date of payment
and delivery being herein called the “Closing Time”, and such date of payment and delivery
being herein called the “Closing Date”).
Payment shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company, against delivery to the Underwriters for the
respective accounts of the Underwriters of certificates for the Securities to be purchased
- 15 -
by them. It is understood that each Underwriter has authorized TD Securities Inc., for its
account, to accept delivery of, receipt for, and make payment of the Purchase Price for, the
Securities which it has agreed to purchase. TD Securities Inc., individually and not as
representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) Denominations; Registration.
Certificates for the Securities shall be registered in the name of “CDS & Co.” and in
such denominations as may be required by the Canadian Depository for Securities Limited, or
as otherwise may be requested in writing at least one full business day before the Closing
Date.
Section 3. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
(i) Subject to the following sentence, prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration Statement or
amendment or supplement to the U.S Base Prospectus or the Canadian Base Prospectus, as the
case may be, unless the Company has furnished the Underwriters or their counsel a copy for
their review prior to filing and will not file any such proposed amendment or supplement to
which the Underwriters reasonably object. The Company will prepare a supplement to the
Canadian Base Prospectus in relation to the Securities in accordance with Canadian
Securities Law and a supplement to the U.S. Base Prospectus consisting of the supplement to
the Canadian Base Prospectus, modified as required or permitted by Form F-10, in each case
in a form approved by the Underwriters and shall file (A) such supplement to the Canadian
Base Prospectus with the Reviewing Authority and the Qualifying Authorities in accordance
with Canadian Securities Law and the Shelf Procedures no later than the close of business on
the second business day following the Execution Time or, if applicable, such earlier time as
may be required by Canadian Securities Law, and (B) such supplement to the U.S. Base
Prospectus with the Commission pursuant to General Instruction II.L. of Form F-10 not later
than the Commission’s close of business on the business day following the date of the filing
thereof with the Reviewing Authority. The Company will promptly file all reports required
to be filed by it with the Reviewing Authority and the Qualifying Authorities pursuant to
Canadian Securities Law and with the Commission pursuant to Section 13(a), 13(c) or 15(d) of
the 1934 Act within the time periods required by the 1934 Act and the rules and regulations
of the Commission thereunder for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such same
- 16 -
period will
advise the Underwriters, promptly after it receives notice thereof, (A) when any amendment
to the Canadian Base Prospectus, the U.S. Base Prospectus or the Registration Statement has
been filed or becomes effective or any supplement to the Canadian Base Prospectus, the U.S.
Base Prospectus, the Canadian Final Prospectus or the U.S. Final Prospectus has been filed
with the Reviewing Authority and the Qualifying Authorities or the Commission, (B) of the
issuance by the Reviewing Authority, any Qualifying Authority, any stock exchange or the
Commission of any stop order or of any order preventing or suspending the use of the
Registration Statement or any prospectus relating to the Securities, (C) 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 (D) of any request by
the Reviewing Authority, any Qualifying Authority, any stock exchange or the Commission for
the amending or supplementing of the Registration Statement, the Canadian Base Prospectus,
the Canadian Final Prospectus, the U.S. Base Prospectus or the U.S. Final Prospectus or for
additional information relating to the Securities, the Registration Statement, the Canadian
Base Prospectus, the Canadian Final Prospectus, the U.S. Base Prospectus or the U.S. Final
Prospectus; and, the Company will make every reasonable effort to prevent the issuance of
any such stop order or any such order preventing or suspending the use of the Registration
Statement or any prospectus relating to the Securities or the suspension of any such
qualification and, in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of the Registration Statement or any prospectus relating to
the Securities or suspending any such qualification, to promptly make every effort to obtain
the withdrawal of such order.
(ii) The Company will prepare for dissemination by the Underwriters a final term sheet
in the form attached hereto as Schedule C, containing solely a description of the final
terms of the Securities and the offering thereof, in the form approved by the Underwriters
and will file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time
required by such Rule.
(b) Filing of Amendments.
If, at any time prior to the filing of the U.S. Final Prospectus, any event occurs as a
result of which the Disclosure Package would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made or the circumstances then prevailing not
misleading, the Company will (i) notify promptly the Underwriters so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the Disclosure Package to correct such statement or omission; and (iii) supply any amendment
or supplement to the Underwriters in such quantities as the Underwriters may reasonably
request.
If, at any time when a prospectus relating to the Securities is required to be
delivered under the 1933 Act or applicable Canadian Securities Law, any event occurs as a
result of
- 17 -
which the Canadian Final Prospectus or the U.S. Final Prospectus would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement, file an
amendment to the Registration Statement or amend or supplement the Canadian Final Prospectus
or the U.S. Final Prospectus to comply with Canadian Securities Law, the 1933 Act or the
1934 Act, or the respective rules thereunder, the Company promptly will (1) notify the
Underwriters of such event, (2) prepare and file with the Reviewing Authority, the
Qualifying Authorities and the Commission, subject to the first sentence of paragraph (a) of
this Section 3, an amendment or supplement or new registration statement which will correct
such statement or omission or effect such compliance and (3) supply any amended or
supplemented Canadian Final Prospectus, U.S. Final Prospectus and Registration Statement to
the Underwriters in such quantities as they may reasonably request.
(c) Delivery of Filed Documents.
The Company has furnished or will deliver to the Underwriters and their counsel,
without charge, signed copies of the Canadian Base Prospectus and the Canadian Preliminary
Prospectus and Canadian Final Prospectus, approved, signed and certified as required by
Canadian Securities Law and signed and conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein if so requested and documents incorporated or deemed to be
incorporated by reference therein and including a signed copy of the Form F-X) and signed
copies of all consents and certificates of experts.
(d) Delivery of Prospectuses.
The Company will deliver to each Underwriter, without charge, as many copies of the
U.S. Preliminary Prospectus, the U.S Final Prospectus, the Canadian Preliminary Prospectus
and the Canadian Final Prospectus (each as amended or supplemented) as such Underwriter has
reasonably requested, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the U.S. Preliminary Prospectus and the U.S. Final Prospectus are
required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
U.S. Preliminary Prospectus, the U.S. Final Prospectus, the Canadian Preliminary Prospectus
and the Canadian Final Prospectus (each as amended or supplemented) as such Underwriter may
reasonably request. The delivery of such prospectus shall constitute the consent of the
Company to the use of such prospectuses in each province of Canada and in the United States,
respectively.
- 18 -
(e) Blue Sky Qualifications.
The Company will use its commercially reasonable efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Underwriters may designate and
to maintain such qualifications in effect so long as reasonably required for the
distribution of the Securities, such period not to exceed one year; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to continue such
qualification in effect so long as required for the sale of the Securities. The Company
will also supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
(f) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are necessary in
order to make generally available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds.
The Company will use the net proceeds received by it from the sale of the Securities in
the manner specified in the Disclosure Package, the U.S. Final Prospectus and the Canadian
Final Prospectus under the captions “Use of Proceeds” and “Capitalization”.
(h) French Version of the Canadian Preliminary Prospectus and the Canadian Final Prospectus.
The Company shall cause or have caused its Canadian counsel to deliver an opinion
concurrently with the filing of each of the Canadian Preliminary Prospectus and the Canadian
Final Prospectus to the effect that the French language version of the Canadian Preliminary
Prospectus and the Canadian Final Prospectus, respectively, including the documents
incorporated by reference therein, (except for the financial information) is in all material
respects a complete and accurate translation of the English language version thereof. The
Company shall cause or have caused its auditors to deliver an opinion concurrently with the
filing of each of the Canadian Preliminary Prospectus and the Canadian Final Prospectus to
the effect that the French language version of the financial information in the Canadian
Preliminary Prospectus and the Canadian Final Prospectus, respectively, including financial
- 19 -
information incorporated by reference therein, is in all material respects a complete and
accurate translation of the English language version thereof.
(i) Free Writing Prospectus.
The Company agrees that, unless it has or shall have obtained the prior written consent
of the Underwriters, and each Underwriter, severally and not jointly, agrees with the
Company that, unless it has or shall have obtained, as the case may be, the prior written
consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute a “free writing prospectus” (as defined in Rule 405 under
the 0000 Xxx) required to be filed by the Company with the Commission or retained by the
Company pursuant to Rule 433 under the 1933 Act, other than a free writing prospectus
containing the information contained in the final term sheet prepared and filed pursuant to
Section 3(a)(ii) hereof (the “Permitted Free Writing Prospectus”). The Company agrees that
(x) it has treated and will treat, as the case may be, the Permitted Free Writing Prospectus
as a “free writing prospectus” (as defined in Rule 405 under the 0000 Xxx) and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433
under the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect
of timely filing with the Commission, legending and record keeping.
Section 4. Payment of Expenses.
(a) Expenses.
The Company will pay all expenses incident to the performance of its obligations under
this Underwriting Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits and the Form F-X) as
originally filed and of each amendment thereto, the U.S. Base Prospectus, the U.S.
Preliminary Prospectus, the U.S. Final Prospectus, the Canadian Base Prospectus, the
Canadian Preliminary Prospectus, the Canadian Final Prospectus, any other supplemental
prospectuses relating to the offering of the Securities and any Supplementary Material and
any amendments or supplements thereto, and the cost of furnishing copies thereof to the
Underwriters, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the certificates for the Securities to the
Underwriters including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities, (iv) the fees and disbursements of the Company’s counsel,
accountants and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(e) hereof, including the filing fees
incident to any necessary filings under state securities laws and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such state filings,
(vi) the printing and delivery to the Underwriters of copies of each preliminary prospectus
and of the U.S. Final Prospectus, the
- 20 -
Canadian Final Prospectus and the Registration
Statement and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the blue sky survey and any supplement thereto,
including reasonable fees and expenses of counsel for the Underwriters relating to such
preparation, (viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and the
Securities, (ix) the fees and expenses of any transfer agent or registrar for the
Securities, (x) any fees payable in connection with the rating of the Securities, and (xi)
any fees and expenses payable in connection with any roadshow or other marketing
undertaking. Except as set out in section 4(a)(v) and 4(a)(vii), section 4(b) and section
6, the Company shall not be responsible for the fees or disbursements of counsel for the
Underwriters.
(b) Termination of Underwriting Agreement.
If this Underwriting Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5 or Section 9(a) hereof, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters’ Obligations.
The obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Company contained in Section 1 hereof or in
certificates of any officer of the Company or any subsidiary of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its other covenants
and obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement.
The Canadian Final Prospectus including all necessary amendments or supplements shall
have been filed with the Reviewing Authority and the Qualifying Authorities; the U.S. Final
Prospectus shall have been filed with the Commission pursuant to General Instruction II.L of
Form F-10 under the 1933 Act within the applicable time period prescribed for filing; the
final term sheet contemplated by Section 3(a)(ii) hereof, and any other material required to
be filed by the Company pursuant to Rule 433(d) under the 1933 Act, shall have been filed
with the Commission within the applicable time periods prescribed for such filings by Rule
433; and at the Closing Time: 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 threatened by the Commission; no order of the Reviewing
Authority or any Qualifying Authority to cease distribution of the Securities under any
prospectus shall have been issued, and no proceedings for such purpose shall have been
instituted or threatened; and all requests for additional information on the part of the
Commission or the Reviewing Authority or any Qualifying Authority shall have been complied
with.
- 21 -
(b) Opinion of Canadian Counsel for Company.
At the Closing Time, the Underwriters shall have received the favourable opinion, dated
as of the Closing Date, of Fraser Xxxxxx Casgrain LLP, Canadian counsel of the Company, in
form and substance satisfactory to counsel for the Underwriters, acting reasonably, to the
effect set forth in Exhibit A hereto and to such further effect as counsel to the
Underwriters may reasonably request. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the laws of the Province of
Alberta and the federal laws of Canada applicable therein, on the opinions of counsel
satisfactory to the Underwriters, acting reasonably. Such counsel may state that they
express no opinion as to the Communications Statutes (as defined in Exhibit D) and related
matters covered by the opinion of Fasken Xxxxxxxxx DuMoulin LLP referred to in Section 5(f)
or as to the laws of any jurisdiction other than Canadian federal laws or the laws of the
Province of Alberta except as aforesaid. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of public
officials.
(c) Opinion of U.S. Counsel for Company.
At the Closing Time, the Underwriters shall have received the favourable opinion, dated
as of the Closing Date, of Xxxxxxx & Xxxxxx L.L.C., United States counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, acting reasonably, to
the effect set forth in Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request. Such counsel may state that they express no opinion as
to the Communications Statutes and related matters covered by the opinion of Fasken
Xxxxxxxxx DuMoulin LLP referred to in Section 5(f) or as to the laws of any jurisdiction
other than U.S. federal laws or the laws of the State of New York. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(d) Opinion of Canadian Counsel for Underwriters.
At the Closing Time, the Underwriters shall have received the favourable opinion, dated
as of the Closing Date, of XxXxxxxx Xxxxxxxx LLP, Canadian counsel for the Underwriters,
with respect to the matters set forth in Sections (x), (xi), (xii) and (xv), inclusive, of
Exhibit A. In giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the laws of the Province of Alberta and Ontario and the
federal laws of Canada applicable therein upon the opinions of counsel satisfactory to the
Underwriters. Such counsel may state that they express no opinion as to the Communications
Statutes and related matters covered by the opinion of Fasken Xxxxxxxxx DuMoulin LLP
referred to in Section 5(f). Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
- 22 -
proper, upon certificates of officers of the Company and its subsidiaries and certificates of public
officials.
(e) Opinion of U.S. Counsel for Underwriters.
At the Closing Time, the Underwriters shall have received the favourable opinion, dated
as of the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel
for the Underwriters, to the effect set forth in Exhibit C hereto. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions other than
the law of the State of New York and the federal laws of the United States, upon the
opinions of counsel satisfactory to the Underwriters. Such counsel may state that they
express no opinion as to the Communications Statutes and related matters covered by the
opinion of Fasken Xxxxxxxxx DuMoulin LLP referred to in Section 5(f). Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(f) Opinion of Regulatory Counsel.
At the Closing Time, the Underwriters shall have received the favourable opinion, dated
as of the Closing Date, of Fasken Xxxxxxxxx XxXxxxxx LLP, regulatory counsel of the Company,
in form and substance satisfactory to counsel for the Underwriters acting reasonably to the
effect set forth in Exhibit D hereto and to such further effect as counsel to the
Underwriters may reasonably request. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of public
officials.
(g) Officers’ Certificate.
At the Closing Time, there shall not have occurred, since the date hereof or since the
respective dates as of which information is given in the Disclosure Package, the U.S. Final
Prospectus and the Canadian Final Prospectus, any Material Adverse Effect, and the
Underwriters shall have received a certificate of the Chief Executive Officer, the President
or a Vice President of the Company and of the Chief Financial Officer of the Company, or
such other officers as may be acceptable to the Underwriters, dated as of Closing Date, to
the effect that (i) there has been no such Material Adverse Effect, (ii) the representations
and warranties in Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied at or prior
to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no order having the effect of ceasing or suspending the
distribution of the Securities has been issued by the Commission or any securities
commission or securities regulatory authority in Canada and no proceedings for that purpose
- 23 -
have been instituted or are pending or are contemplated by the Commission or any securities
commission or securities regulatory authority in Canada.
(h) Accountants’ Comfort Letter.
At the time of the execution of this Underwriting Agreement, the Underwriters shall
have received from Ernst & Young LLP a letter dated such date, in form and substance
satisfactory to the Underwriters, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration
Statement, the U.S. Preliminary Prospectus and the Canadian Preliminary Prospectus.
(i) Bring-down Comfort Letter.
At the Closing Time, the Underwriters shall have received from Ernst & Young LLP a
letter, dated as of the Closing Date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement, the U.S. Final
Prospectus and the Canadian Final Prospectus.
(j) Maintenance of Rating.
At the Closing Time, the Securities shall be rated at least Baa3 (stable outlook) by
Xxxxx’x Investors Service Inc., BBB- (stable outlook) by Standard & Poor’s Ratings Group, a
division of XxXxxx-Xxxx, Inc., and BBB (low) (positive trend) by Dominion Bond Rating
Service Limited, and the Company shall have delivered to the Underwriters a letter dated as
of the Closing Date (or such other date as the Underwriters reasonably approve),
satisfactory to the Underwriters and its counsel, from each such rating agency, or other
evidence satisfactory to the Underwriters and its counsel, confirming that the Securities
have such ratings; and since the date of this Underwriting Agreement, there shall not have
occurred a downgrading in the rating assigned to the Securities or any of the Company’s
other securities by any “nationally recognized statistical rating agency”, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company’s other securities.
(k) Additional Documents.
At the Closing Time, the Company shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably request and
counsel for the Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the
- 24 -
accuracy of any
of the representations or warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with the issuance and sale
of the Securities as herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(l) Termination of Underwriting Agreement.
If any condition specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Underwriting Agreement and the obligations of the several
Underwriters to purchase the relevant Securities, may be terminated by the Underwriters by
notice in writing to the Company at any time at or prior to Closing Time or such date of
delivery, as the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1, 6, 7 and 11
shall survive any such termination and remain in full force and effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(A) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of the
Securities as originally filed or any amendment thereof, or in the Canadian Base
Prospectus, the U.S. Base Prospectus, the Canadian Preliminary Prospectus, the U.S.
Preliminary Prospectus, any other preliminary prospectus supplement relating to the
Securities, the Canadian Final Prospectus, the U.S. Final Prospectus, any
Supplemental Material, the Permitted Free Writing Prospectus, or in any amendment
thereof or supplement thereto, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(B) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
- 25 -
(C) against any and all expense whatsoever, as incurred (including the fees and
disbursements of one firm of counsel in each relevant jurisdiction chosen by TD
Securities Inc.), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (A) or (B) above;
provided, however, that this indemnity agreement shall not apply to (i) any
loss, liability, claim, damage or expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Underwriters for use in the
registration statement for the registration of the Securities as originally filed or any
amendment thereof, or in the Canadian Base Prospectus, the U.S. Base Prospectus, the
Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, any other preliminary
prospectus supplement relating to the Securities, the Canadian Final Prospectus, the U.S.
Final Prospectus, any Supplemental Material, the Permitted Free Writing Prospectus, or in
any amendment thereof or supplement thereto, and (ii) any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission in the Canadian Preliminary Prospectus or the U.S. Preliminary
Prospectus or any other preliminary prospectus supplement that is correct in the Disclosure
Package or the Canadian Final Prospectus if the person asserting any such loss, liability,
claim, damage or expense purchased any of the Securities from such Underwriter but was not
sent or given a copy of the Disclosure Package or the Canadian Final Prospectus, at or prior
to the written confirmation of the sale of such Securities to such person and (A) the
Company has complied with Section 3(c) of this Agreement, and (B) any untrue statement or
omission or alleged untrue statement or omission in any such preliminary prospectus has been
corrected in the Disclosure Package or the Canadian Final Prospectus in the reasonable view
of the Underwriters and (C) it shall be established that the person asserting any such loss,
liability, claim, damage or expense was not sent or given a copy of the Disclosure Package
or the Canadian Final Prospectus, at or prior to the written confirmation of the sale of the
Securities.
(b) Indemnification of Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement or the Canadian Final
Prospectus, and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Disclosure Package, the U.S. Final Prospectus or the
Canadian Final Prospectus in reliance upon and in conformity with written information
- 26 -
furnished to the Company by such Underwriter expressly for use in the Disclosure Package,
the U.S. Final Prospectus or the Canadian Final Prospectus.
(c) Actions against Parties; Notification.
Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of section 6(a) above. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by the Underwriters with the consent of the Company, such consent not to be
unreasonably withheld or delayed, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which indemnification
or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(B) effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received written notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
- 27 -
Section 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable
to or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to this
Underwriting Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on
the other hand in connection with the offering of the Securities pursuant to this
Underwriting Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Underwriting Agreement
(before deducting expenses) received by the Company and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the Canadian Final
Prospectus, bear to the aggregate initial public offering price of the Securities as set
forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Underwriters 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 Section 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 Section. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
- 28 -
Notwithstanding the provisions of this Section, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the
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 any 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 0000 Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters’ respective
obligations to contribute pursuant to this Section are several in proportion to the
principal amount of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting Agreement
or in certificates of officers of the Company or any of its subsidiaries submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Securities to the Underwriters.
Section 9. Termination of Underwriting Agreement.
(a) Termination; General.
The Underwriters may terminate this Underwriting Agreement, by notice to the Company,
at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Underwriting Agreement or since the respective dates as of which information is
given in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus
(in each case, exclusive of any amendment or supplement thereto), any material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or Canada or in the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change in
- 29 -
national or international political, financial or economic conditions or any law or
regulation, in each case the effect of which, in the opinion of the Underwriters, seriously
adversely affects or involves, or will seriously adversely affect or involve, the financial
markets or the business, operations or affairs of the Company and its subsidiaries
considered as one enterprise, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission, the Reviewing Authority or any Qualifying
Authority, The Toronto Stock Exchange or The New York Stock Exchange, or if trading
generally on the NYSE AMEX LLC or in the Nasdaq National Market or The Toronto Stock
Exchange has been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the Reviewing Authority or any Qualifying
Authority, the Financial Industry Regulatory Authority, Inc. or any other governmental
authority, or a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or with respect to Clearstream or
Euroclear Systems in Europe or with respect to The Canadian Depository For Securities
Limited in Canada, or (iv) if a banking moratorium has been declared by any United States
federal, New York State or Canadian federal or provincial authorities.
(b) Liabilities.
If this Underwriting Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 6, 7 and 11 shall survive such termination and
remain in full force and effect.
Section 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Underwriting Agreement (the
“Defaulted Securities”), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth. If, however, the
Underwriters shall not have completed such arrangements within such 24 hour period, then:
(A) if the number of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities to be purchased hereunder, the non-defaulting
Underwriters shall be obligated, each severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
- 30 -
(B) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this Underwriting
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this
Underwriting Agreement, either the Underwriters or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement, the U.S. Final Prospectus or the Canadian
Final Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section.
Section 11. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery of this Underwriting Agreement, the Company (i)
acknowledges that it has, by separate written instrument, irrevocably designated and
appointed CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. (or any
successor) (together with any successor, the “Agent for Service”), as its authorized agent
upon which process may be served in any suit or proceeding arising out of or relating to
this Underwriting Agreement or the Securities, that may be instituted in any federal or New
York state court in the Borough of Manhattan in The City of New York, or brought under
federal or state securities laws, and acknowledges that the Agent for Service has accepted
such designation and has provided written evidence of engagement of CT Corporation System
acting as such, (ii) submits to the jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon the Agent for Service and written
notice of said service to the Company (mailed or delivered to its Chief Financial Officer at
its principal office in Calgary, Alberta, Canada), shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding. The Company
further agrees to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such designation and
appointment of the Agent for Service in full force and effect so long as any of the
Securities shall be outstanding.
To the extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such immunity in respect of
its obligations under the above-referenced documents, to the extent permitted by law.
- 31 -
The provisions of this Section 11 shall survive any termination of this Underwriting
Agreement, in whole or in part.
Section 12. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to the Underwriters c/o TD Securities Inc., TD
Bank Tower, 8th Floor, 00 Xxxxxxxxxx Xx. Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx,
attention of Xxxxxx Xxxxxx (fax: (000) 000-0000); and notices to the Company shall be
directed to it at 000 Xxxxx Xxxxxx X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0,
Canada, attention of the Chief Financial Officer (fax: (000) 000-0000).
Section 13. Authority of Lead Underwriters
The other Underwriters authorize TD Securities Inc. on their behalf to exercise all the
authority and discretion granted to the Underwriters under the Underwriting Agreement and to
take all such action as they may believe desirable in connection with the performance of the
Underwriting Agreement and the purchase, sale and distribution of the Securities, provided,
however, that TD Securities Inc. shall take no action pursuant to paragraph 6 or paragraph 7
of the Underwriting Agreement without the consent of at least one of the other Underwriters;
provided further, that TD Securities Inc. shall not be under any liability whatsoever to any
of the other Underwriters except for want of good faith and for the obligations expressly
assumed by them in this Underwriting Agreement.
Section 14. Parties.
This Underwriting Agreement shall inure to the benefit of and be binding upon each of
the Underwriters and the Company and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or any provision herein
contained. This Underwriting Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the Company and
their respective successors, and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 15. Governing Law and Time.
- 32 -
THIS UNDERWRITING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE PROVINCE OF ALBERTA AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN (WITHOUT
REFERENCE TO ALBERTA’S CONFLICT OF LAWS PROVISIONS). EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO EASTERN DAYLIGHT TIME.
Section 16. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 17. Entire Agreement.
The terms and conditions of this Underwriting Agreement supersede any previous verbal
or written agreement between the Underwriters and the Company with respect to the subject
matter hereof.
Section 18. Counterparts.
This Underwriting Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
Section 19. Electronic Execution.
Delivery of an executed signature page to this Underwriting Agreement by any party by
electronic transmission will be as effective as delivery of a manually executed copy of this
Underwriting Agreement by such party.
- 33 -
If the foregoing is in accordance with your understanding and agreed to by you, please
signify your acceptance on the accompanying duplicate of this letter and return the same to
us, whereupon this letter shall constitute a binding agreement between the Company and the
Underwriters.
| TD SECURITIES INC. | RBC DOMINION SECURITIES INC. | |||||||||
By:
|
/s/ Xxxxxx Xxxxxx | By: | /s/ Xxxxxx Xxxxxx Xxxxxxx | |||||||
| Name: Xxxxxx Xxxxxx | Name: Xxxxxx Xxxxxx Xxxxxxx | |||||||||
| Title: Managing Director | Title: Managing Director | |||||||||
| CIBC WORLD MARKETS INC. | SCOTIA CAPITAL INC. | |||||||||
By:
|
/s/ Xxxxxxx X. Xxxx | By: | /s/ Xxx Xxxxxx | |||||||
| Name: Xxxxxxx X. Xxxx | Name: Xxx Xxxxxx | |||||||||
| Title: Managing Director | Title: Managing Director | |||||||||
- 34 -
The foregoing is in accordance with our understanding and is accepted and agreed as of this
24th day of March, 2009.
XXXX COMMUNICATIONS INC.
By:
|
/s/ Xxxxx Xxxxxx | |||
| Authorized Signatory | ||||
By:
|
/s/ Trevor English | |||
| Authorized Signatory | ||||
SCHEDULE A
| Principal | ||||||||
| Name of Underwriter | Amount of Securities | |||||||
TD Securities Inc. |
$ | 240,000,000 | 40 | % | ||||
RBC Dominion Securities Inc. |
180,000,000 | 30 | % | |||||
CIBC World Markets Inc. |
90,000,000 | 15 | % | |||||
Scotia Capital Inc. |
90,000,000 | 15 | % | |||||
Total |
$ | 600,000,000 | 100 | % | ||||
SCHEDULE B
XXXX COMMUNICATIONS INC.
$600,000,000 6.50% Senior Notes due 2014
1. The purchase price (the “Purchase Price”) to be paid by the Underwriters for the Securities
shall be 99.704% of the principal amount thereof against delivery of the Securities and payment of
the Underwriting Commission.
2. The interest rate on the Securities shall be 6.50% per annum.
3. The Securities will mature on June 2, 2014.
SCHEDULE C
TERM SHEET
| Issuer: | Xxxx Communications Inc. (the “Issuer”) | |||||
| Issue: | Senior Notes (the “Notes”) issued by way of Public Offering in all provinces in Canada and in the United States pursuant to a Base Shelf Prospectus dated March 11, 2009, and Prospectus Supplement dated March 24, 2009 (together, the “Prospectus”) | |||||
Ratings:
|
DBRS: | BBB (low) | (positive trend) | |||
| Xxxxx’x: | Baa3 | (stable outlook) | ||||
| S&P: | BBB- | (stable outlook) | ||||
| Principal Amount: | $600 million | |||||
| Term: | 5.2 years | |||||
| Pricing Date: | Xxxxx 00, 0000 | |||||
| Xxxxxxxxxx Date: | Xxxxx 00, 0000 | |||||
| Xxxxxxxx Date: | June 2, 2014 | |||||
| Price: | $99.704 | |||||
| Yield: | 6.571% | |||||
| Coupon: | 6.50% | |||||
| Spread: | +470 bps versus Government of Canada 3.00% June 1, 2014 (priced at $105.550 to yield 1.871%) | |||||
| Coupon Payment Dates: | Payable in equal semi-annual installments in arrears on the 2nd day of June and December commencing June 2nd, 2009. The initial coupon payment will be in the amount of $7,158,904.11. | |||||
| Rank: | The Notes will be senior unsecured obligations of Xxxx Communications Inc. and will rank equally and ratably with all existing and future senior unsecured indebtedness of the Issuer. | |||||
| Change of Control: | The Issuer will be required to make an offer to repurchase the Notes at a price equal to 101% of their principal amount plus accrued and | |||||
- 2 -
| unpaid interest to the date of repurchase upon the occurrence of a Change of Control Triggering Event, as defined in the Prospectus. | ||||||
| Redemption: | At the greater of (i) 100% of the principal amount of the Notes, or (ii) the Canada Yield Price (GoC + 117 bps), plus, in either case, accrued interest thereon to the date of redemption. The Issuer may also redeem all of the Notes if certain events occur involving Canadian taxation. | |||||
| Use of Proceeds: | The net proceeds of this offering will be used for debt repayment or redemption, including the Issuer’s credit facility and the Videon Cablesystems Inc. 8.15% Senior Debentures due April 26, 2010, working capital and general corporate purposes. | |||||
| Form and Denomination: | Book entry through participants in CDS or its nominee. Noteholders may hold their Notes through the accounts maintained by DTC, Euroclear or Clearstream, Luxembourg. | |||||
| Commission: | $0.625 | |||||
| Underwriters: | TD Securities Inc. (sole lead and bookrunner) RBC Dominion Securities Inc. CIBC World Markets Inc. Scotia Capital Inc. |
|||||
| CUSIP / ISIN: | 00000XXX0 / CA 82028KAN15 | |||||
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time.
The Issuer has filed a Registration Statement on Form F-10 (File No. 333-157639) with the SEC for
the offering to which this communication relates. Before you invest, you should read the Prospectus
and the documents incorporated therein by reference that the Issuer has filed with the SEC for more
complete information about the Issuer and this offering. You may obtain these documents for free by
visiting XXXXX on the SEC website at xxx.xxx.xxx or by visiting the Canadian System for Electronic
Document Analysis and Retrieval (SEDAR) website, which may be accessed at xxx.xxxxx.xxx.
Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange
to send you the Prospectus and any document incorporated by reference in the Prospectus if you
request it by calling TD Securities Inc. at 000-000-0000.
Any legends, disclaimers or other notices that may appear below are not applicable to this
communication and should be disregarded. Such legends, disclaimers or other notices have been
automatically generated as a result of this communication having been sent via Bloomberg or another
system.
EXHIBIT A
FORM OF OPINION OF
CANADIAN COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
CANADIAN COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly amalgamated and is a valid and subsisting corporation
under the laws of the Province of Alberta.
(ii) The Company has all requisite corporate power and corporate capacity to own, lease
and operate its properties and to conduct its business as described in the U.S. Final
Prospectus and the Canadian Final Prospectus and to enter into and perform its obligations
under this Underwriting Agreement.
(iii) The Canadian Base Prospectus, the Canadian Preliminary Prospectus and the
Canadian Final Prospectus, in each case in both the French language and English language,
and the U.S. Base Prospectus, the U.S. Preliminary Prospectus, the U.S. Final Prospectus and
the Registration Statement have been duly approved and authorized by and on behalf of the
Company, and the Canadian Base Prospectus, the Canadian Preliminary Prospectus, the Canadian
Final Prospectus and the Registration Statement have been duly executed pursuant to such
authorizations by and on behalf of the Company and its board of directors.
(iv) The Company is extra-provincially registered to transact business in each
jurisdiction in Canada in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(v) The issued and outstanding share capital of the Company is as set forth in the U.S.
Final Prospectus and the Canadian Final Prospectus under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to reservations, agreements or employee
benefit plans referred to in the U.S. Final Prospectus and the Canadian Final Prospectus
pursuant to the exercise of convertible securities or options referred to in the U.S. Final
Prospectus and the Canadian Final Prospectus or purchased pursuant to the Company’s normal
course issuer bid); the issued and outstanding shares in the capital of the Company have
been duly authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares in the share capital of the Company was issued in violation of the
preemptive or other similar rights conferred on any securityholder of the Company by its
constating documents or the laws of Alberta.
(vi) Each of Xxxx Cablesystems Limited, Xxxx Cablesystems G.P., Videon CableSystems
Inc., Shaw Satellite Services Inc. and Star Choice Television Network Incorporated (the
“Significant Subsidiaries”) has been duly incorporated or organized
- 2 -
and is a valid and subsisting corporation or partnership under the laws of the
jurisdiction of its incorporation or organization, has the requisite power and capacity to
own, lease and operate its properties and to conduct its business as described in the U.S.
Final Prospectus and the Canadian Final Prospectus and is extra-provincially registered to
transact business in each jurisdiction in Canada in which such registration is required,
whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure to register would not result in a Material Adverse Effect; except as
otherwise disclosed in the Canadian Final Prospectus and the U.S. Final Prospectus, to the
best of such counsel’s knowledge, (A) all of the issued and outstanding shares in the
capital of each Significant Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and (B) all of the issued and outstanding share capital of,
or partnership interest in, as applicable, each Significant Subsidiary is registered in the
name of the Company or one of its direct or indirect wholly-owned subsidiaries and is free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares in the capital of any Significant Subsidiary were issued in
violation of the preemptive or similar rights conferred on any securityholder of such
Significant Subsidiary by its constating documents or the laws of its jurisdiction of
incorporation or formation.
(vii) The Company has all requisite corporate power and corporate capacity to execute,
deliver and perform its obligations under the Underwriting Agreement and the Underwriting
Agreement has been duly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the customary qualifications on enforceability.
(viii) The Company has all requisite corporate power and corporate capacity to execute,
deliver and perform its obligations under the Indenture; the Supplemental Indenture has been
duly authorized, executed and delivered by the Company and the Indenture constitutes a
legal, valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the customary qualifications on enforceability.
(ix) The Company has all requisite corporate power and authority to execute, deliver
and perform its obligations under the Securities and the Securities are in the form
contemplated by the Indenture, and the Securities have been duly authorized, executed,
issued and delivered by the Company and constitute a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with their terms, subject to the
customary qualifications on enforceability.
(x) The Securities and the Indenture conform in all material respects to the
descriptions thereof contained in the Canadian Final Prospectus and the U.S. Final
Prospectus.
- 3 -
(xi) A receipt under the Prospectus Review Procedures dated March 11, 2009 has been
obtained in respect of the Canadian Base Prospectus from the Reviewing Authority, on its
behalf and on behalf of the Qualifying Authorities, and on March 25, 2009 the Canadian Final
Prospectus was filed with the Reviewing Authority and the Qualifying Authorities and all
necessary documents have been filed, all necessary proceedings have been taken and all
necessary authorizations, approvals, permits, consents and orders have been obtained under
the securities laws of the Province of Alberta and the other Qualifying Provinces to permit
the Securities to be issued, offered, sold and delivered in Canada through investment
dealers or brokers who are registered under applicable legislation of each of the Qualifying
Provinces and who have complied with the relevant provisions of such applicable legislation
and the terms of such registration and in the United States, provided the applicable laws of
the United States are complied with, and no other consent, approval, authorization, license,
order, registration, qualification or decree of or with any government, governmental
instrumentality, authority or agency or court of Canada or of the Province of Alberta is
necessary or required in connection with the due authorization, execution and delivery of
this Underwriting Agreement or the Indenture or for the offering, issuance, sale or delivery
of the Securities in the United States, provided the applicable laws of the United States
are complied with.
(xii) The Company is a “reporting issuer” or equivalent under the securities laws of
the Province of Alberta and each of the other Qualifying Provinces which recognize such
concept and is not, to the knowledge of such counsel, in default of any requirement under
such securities laws.
(xiii) To the best of such counsel’s knowledge, there are no Canadian statutes or
regulations (excluding the Communications Statutes and any other Canadian statutes
specifically relating to the regulation of either or both of the Canadian broadcasting and
telecommunications industries and the orders, rules, regulations and directions promulgated
pursuant to such statutes, including any statutes or regulations of any province
specifically relating to the regulation of either or both of the Canadian broadcasting and
telecommunications industries and the orders, rules, regulations and directions promulgated
thereunder, about which no opinion is expressed) that are required to be described or
referred to in the Canadian Final Prospectus that are not described or referred to therein
as required, and the descriptions thereof or references thereto are correct in all material
respects.
(xiv) All descriptions in the Canadian Final Prospectus and the U.S. Final Prospectus
of contracts and other documents to which the Company or its Canadian subsidiaries are a
party are accurate in all material respects; to the best of such counsel’s knowledge, after
reasonable investigation, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other information or instruments that in accordance with the
requirements of the Reviewing Authority must be made publicly
- 4 -
available in connection with the offering of the Securities that have not been made
publicly available as required; there are no other documents required to be filed with the
Reviewing Authority or any other Qualifying Authority in connection with the Canadian Base
Prospectus or the Canadian Final Prospectus that have not been filed as required.
(xv) The information in the Registration Statement under “Part II, Indemnification”,
has been reviewed by such counsel and is correct in all material respects; and the opinion
of such counsel in the U.S. Final Prospectus and the Canadian Final Prospectus under the
captions “Certain Income Tax Considerations — Certain Canadian Federal Income Tax
Considerations” and “Eligibility for Investment” is confirmed.
(xvi) The form and terms of the Securities have been duly authorized, approved and
adopted by the Company and comply with the provisions of the Indenture, with any applicable
requirements of the constating documents and by-laws of the Company and with the
requirements of the Business Corporations Act (Alberta) relating thereto.
(xvii) The Company has complied with all conditions precedent to the issue of the
Securities set forth in the Indenture and all applicable legislation in respect thereof.
(xviii) To the best of such counsel’s knowledge based on such counsel’s review, and
except as disclosed in the Canadian Final Prospectus, neither the Company nor any
Significant Subsidiary is in violation of its constating documents or by-laws and no
material default by the Company or any subsidiary exists individually or in the aggregate in
the due performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the Registration Statement, the
U.S. Final Prospectus or the Canadian Final Prospectus or filed as an exhibit to the
Registration Statement.
(xix) There is not pending in the Court of Queen’s Bench of Alberta (Calgary and
Edmonton Judicial Districts) or the Federal Court of Canada, or, to the best of such
counsel’s knowledge, pending or threatened elsewhere any action, suit, proceeding, inquiry,
or investigation, to which the Company or any Significant Subsidiary is a party, or to which
the property of the Company or any Significant Subsidiary is subject, before or brought by
any court or governmental agency or body, domestic or foreign, which individually or in the
aggregate might reasonably be expected to result in a Material Adverse Effect, and to the
best of such counsel’s knowledge, there is no pending or threatened action, suit,
proceeding, inquiry, or investigation, to which any subsidiary of the Company (other than a
Significant Subsidiary) is a party, or to which the property of any subsidiary of the
Company (other than a Significant Subsidiary) is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably
- 5 -
be expected to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Underwriting Agreement or the
Indenture or the performance by the Company of its obligations hereunder or thereunder.
(xx) The Canadian Final Prospectus (other than the financial statements and other
financial data included or incorporated or deemed to be incorporated therein, as to which
such counsel need express no opinion), when filed complied as to form in all material
respects with the applicable requirements of National Instrument 44-101 — Short Form
Prospectus Distributions and Companion Policy 44-101 CP and National Instrument 44-102 -
Shelf Distributions and Companion Policy 44-102 CP of the Canadian Securities Administrators
and complied with the securities laws, rules and regulations of the Province of Alberta as
interpreted and applied by the Reviewing Authority except that such counsel need not, for
the purposes of the opinion expressed in this paragraph, assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Canadian Final
Prospectus.
(xxi) The documents incorporated by reference in the Canadian Final Prospectus as
amended or supplemented (other than the financial statements and other financial data
included or incorporated or deemed to be incorporated therein, as to which such counsel need
express no opinion), when they were filed with the Reviewing Authority and Qualifying
Authorities, appear on their face to have been appropriately responsive in all material
respects to the formal requirements of the securities laws, rules and regulations of the
Province of Alberta as interpreted and applied by the Reviewing Authority and Qualifying
Authorities under published policy statements.
(xxii) To the best of such counsel’s knowledge, no order having the effect of ceasing
or suspending the distribution of the Securities has been issued by the Reviewing Authority
or any Qualifying Authority and no proceedings for that purpose have been instituted or are
pending or contemplated.
(xxiii) The execution, delivery and performance of this Underwriting Agreement, the
Indenture and the Securities and the consummation by the Company of the transactions
contemplated in this Underwriting Agreement and the Indenture, the U.S. Final Prospectus,
the Canadian Final Prospectus and the Registration Statement (including the issuance and
sale of the Securities and the use of proceeds from the sale of the Securities as described
in the U.S. Final Prospectus and the Canadian Final Prospectus under the caption of “Use of
Proceeds” ) and compliance by the Company with its obligations under the Securities, this
Underwriting Agreement and the Indenture do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach of, or a
default or Repayment Event (as defined in Section 1(a) of this Underwriting Agreement)
under, or result in the creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any Canadian subsidiary under any contract,
indenture, mortgage, deed of
- 6 -
trust, loan or credit agreement, note, lease or other agreement or instrument listed in
a schedule to such opinion (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will such action
result in any violation of the provisions of the articles or by-laws of the Company or any
Canadian subsidiary, or any applicable Canadian federal or Province of Alberta law, statute,
rule, regulation, judgment, order, writ or decree known to such Counsel of any government,
governmental instrumentality, or court, domestic or foreign, having jurisdiction over the
Company or the Canadian subsidiaries or any of their properties, assets or operations.
(xxiv) All laws of the Province of Québec relating to the use of the French language
(other than those relating to verbal communications) will be complied with in respect of the
documents to be delivered to purchasers in Québec in connection with the sale of the
Securities to purchasers in Québec if such purchasers receive:
(A) copies of the French and English language versions of the Canadian
Preliminary Prospectus and the Canadian Final Prospectus, in each case delivered at
the same time, or copies of the French language version only and forms of
confirmation in the French language or in bilingual form; or
(B) an English language version of the Canadian Preliminary Prospectus and the
Canadian Final Prospectus only and forms of confirmation in the English language
only if such delivery is made to physical persons who have expressly requested, in
writing, such documents in the English language.
(xxv) The laws of the Province of Alberta and the federal laws of Canada applicable
therein permit an action to be brought in a court of competent jurisdiction in the Province
of Alberta on any final and conclusive judgment in personam of any federal or state court
located in the State of New York (a “New York Court”) against the Company, which judgment is
subsisting and unsatisfied for a sum certain with respect to the enforceability of the
Indenture and the Securities that is not impeachable as void or voidable under the internal
laws of the State of New York if (i) the New York Court rendering such judgment had
jurisdiction over the judgment debtor, as recognized by the courts of the Province of
Alberta (and submission by the Company in the Indenture to the jurisdiction of the New York
Court will be sufficient for that purpose with respect to the Securities); (ii) such
judgment 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 terms are
understood under the laws of the Province of Alberta or contrary to any order made by the
Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by
the Competition Tribunal under the Competition Act (Canada); (iii) the enforcement of such
judgment would not be contrary to the laws of general application limiting the enforcement
of creditors’ rights including bankruptcy, reorganization, winding up, moratorium and
similar laws and does not constitute, directly
- 7 -
or indirectly, the enforcement of foreign revenue, expropriatory or penal laws in the
Province of Alberta; (iv) no new admissible evidence relevant to the action or new right or
defense is discovered prior to the rendering of judgment by the court in the Province of
Alberta; (v) interest payable on the Securities is not characterized by a court in the
Province of Alberta as interest payable as a criminal rate within the meaning of section 347
of the Criminal Code (Canada); and (vi) the action to enforce such judgment is commenced
within the appropriate limitation period; except that, under the Currency Act (Canada), any
court in the Province of Xxxxxxx xxx only give judgment in Canadian dollars; and under the
laws of Alberta, the appropriate date for such conversion when the action is on a foreign
judgment may be other than the date of payment of the judgment.
Such opinion shall additionally state that such counsel has participated in the preparation of
the Registration Statement, the Disclosure Package, the U.S. Final Prospectus, the Canadian Final
Prospectus, and the Supplementary Material, if any, in connection with the offering of the
Securities, and in conferences with officers and other representatives of the Company,
representatives of the independent chartered accountants for the Company, and the Underwriters, at
which the contents of the Registration Statement, the Disclosure Package, the U.S. Final Prospectus
and the Canadian Final Prospectus and related matters were discussed and have reviewed the
documents incorporated by reference in the Registration Statement, the U.S. Final Prospectus and
the Canadian Final Prospectus and, although such counsel have not independently verified or checked
and are not passing upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, Disclosure Package, the U.S.
Final Prospectus and the Canadian Final Prospectus except as set forth in paragraphs (v), (x),
(xiv) and (xv) above, on the basis of such participation no facts have come to their attention that
lead them to believe (a) that the Registration Statement, at the time it became effective,
contained any 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, (b) that the
Disclosure Package, at the Execution Time, 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, in the light of the circumstances under which they were made, not misleading or (c) that
the U.S. Final Prospectus or the Canadian Final Prospectus, as of its date and as of the Closing
Date, included or includes an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading (in each case, except
for the financial statements and other financial data and financial projections included or
incorporated therein or omitted therefrom, as to which such counsel need not comment).
In giving such opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the laws of the province of Alberta and the federal laws of Canada
applicable therein upon the opinions of local counsel, who shall be of counsel satisfactory to
counsel for the Underwriters, in which case the opinion shall state that they believe the
Underwriters and they are entitled to so rely. Such counsel may also state that, insofar as such
- 8 -
opinion involves factual matters, but not legal conclusions, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and certificates of public officials;
provided that such certificates have been delivered to the Underwriters. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions.
EXHIBIT B
FORM OF OPINION OF UNITED STATES COUNSEL
FOR THE COMPANY TO BE DELIVERED PURSUANT TO SECTION 5(c)
FOR THE COMPANY TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, authorization, consent, approval, license, order, registration,
qualification or decree of or with any U.S. federal court or governmental authority, or
agency, other than as have been made or obtained under the 1933 Act and the 1933 Act
Regulations and except for the qualification of the Indenture under the 1939 Act, is
necessary or required in connection with the due execution and delivery of this Underwriting
Agreement or the Indenture or for the offering, issuance, sale or delivery of the
Securities.
(ii) The Indenture has been duly qualified under the 1939 Act.
(iii) The description in the U.S. Final Prospectus and the Canadian Final Prospectus
under the caption “Certain Income Tax Considerations — Certain U.S. Federal Income Taxation
Considerations” is correct in all material respects.
(iv) Without such counsel making any accounting or mathematical determination, as to
which such counsel may rely on the Company, the execution, delivery and performance of this
Underwriting Agreement, the Indenture and the Securities by the Company and the consummation
by the Company of the transactions contemplated in this Underwriting Agreement, the
Indenture and the Registration Statement (including the issuance and sale of the Securities
and the use of proceeds from the sale of the Securities as described in the U.S. Final
Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its
obligations under this Agreement, the Indenture and the Securities do not and will not,
whether with or without the giving of notice or lapse of time or both, result in a breach
of, or default or Repayment Event (as defined in Section 1(a)(xiv) of the Underwriting
Agreement) under or result in the creation or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company pursuant to any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or instrument
listed in a schedule to such opinion (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse Effect), or any
applicable law, statute, rule, regulation, judgment, order, writ or decree, known to such
counsel, of any government, governmental instrumentality, regulatory or administrative
agency, authority or commission or court in the United States, having jurisdiction over the
Company or any of its properties, assets or operations.
(v) The Company is not, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described under
- 2 -
“Use of Proceeds” in the U.S. Final Prospectus will not be, an “investment company”, as
such term is defined in the 1940 Act.
(vi) The Form F-X of the Company, as of the time of its filing, the Registration
Statement, at the time the Registration Statement became effective, the Disclosure Package,
as of the Execution Time, and the U.S. Final Prospectus, as of its date and the Closing
Date, appeared on their face to be appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such
counsel need not express any view as to the financial statements, schedules and other
financial data included or incorporated by reference therein or excluded therefrom).
Such opinion shall also state the date that the Registration Statement became effective
pursuant to Rule 467(a) under the 1933 Act, the Company Form F-X and the Trustee Form F-X were each
filed with the Commission prior to the effectiveness of the Registration Statement, and the filing
of the U.S. Preliminary Prospectus and the U.S. Final Prospectus pursuant to General Instruction
II.L of Form F-10 was made in the manner and within the time period required by said General
Instruction II.L. Such counsel shall also state that they have been advised by the Commission that
no stop order suspending the effectiveness of the Registration Statement has been issued and, to
the best of their knowledge, no proceedings for that purpose have been instituted or are pending or
are contemplated under the 1933 Act.
Such opinion shall additionally state that such counsel has participated in the preparation of
the Registration Statement and the U.S. Final Prospectus in connection with the offering of the
Securities and in conferences with officers and other representatives of the Company,
representatives of the independent chartered accountants for the Company, and the Underwriters, at
which the contents of the Registration Statement, the Disclosure Package and the U.S. Final
Prospectus and related matters were discussed and, although such counsel has not independently
verified any factual information and is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the Registration Statement,
the Disclosure Package or the U.S. Final Prospectus other than paragraph (iii), above, on the basis
of such participation nothing has come to such counsel’s attention that would cause such counsel to
believe (a) that the Registration Statement, as of the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (b) that the Disclosure
Package, at the Execution Time, 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, in
the light of the circumstances under which they were made, not misleading or (c) that the U.S.
Final Prospectus, as of its date and as of the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, except for the financial statements
- 3 -
and other financial data and financial projections included or incorporated therein or omitted
therefrom, as to which such counsel need not comment).
Such counsel may also state that, insofar as such opinion involves factual matters (but not as
to legal conclusions), they have relied, to the extent they deem proper, upon certificates of
responsible officers of the Company and certificates of public officials; provided that such
certificates have been delivered to the Underwriters. Such opinion shall not state that it is to
be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or
other document relating to legal opinions, including, without limitation, the Legal Opinion Accord
of the ABA Section of Business Law (1991).
EXHIBIT C
FORM OF OPINION OF UNITED STATES COUNSEL
FOR THE UNDERWRITERS TO BE DELIVERED PURSUANT TO SECTION 5(e)
FOR THE UNDERWRITERS TO BE DELIVERED PURSUANT TO SECTION 5(e)
(i) Based upon such counsel’s review of those laws, rules and regulations of the State
of New York and those federal laws, rules and regulations of the United States of America
which in each case in its experience are normally applicable to transactions of the type
contemplated by the Underwriting Agreement (other than the United States federal securities
laws, state securities or blue sky laws, antifraud laws and the rules and regulations of the
Financial Industry Regulatory Authority, Inc.), but without its having made any special
investigation as to the applicability of any specific law, rule or regulation (“Applicable
Laws”), no consent, approval, license, authorization or validation of, or filing,
qualification or registration with, any court, regulatory body, administrative agency or
governmental body of the State of New York or the United States of America having
jurisdiction over the Company under Applicable Laws which has not been obtained or taken and
is not in full force and effect, is required to authorize, or is required for, the execution
or delivery of the Underwriting Agreement, the Indenture or the Securities by the Company or
the consummation by the Company of the transactions contemplated thereby.
Such counsel shall also provide a letter which shall state that such counsel has participated
in conferences with officers and other representatives of the Company, Canadian and U.S. counsel
for the Company, representatives of the independent registered public accountants for the Company,
and the Underwriters and the Underwriters’ Canadian Counsel, at which conferences the contents of
the Registration Statement, the U.S. Final Prospectus and the Disclosure Package and related
matters were discussed and although such counsel is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement, the U.S. Final Prospectus or the
Disclosure Package, and has made no independent check or verification thereof, on the basis of the
foregoing, such counsel will confirm that (i) the Registration Statement, at the time it became
effective, and the U.S. Final Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements of the 1933 Act and the Rules
and Regulations thereunder (except that in each case such counsel need not express any view as to
the financial statements, schedules and other financial information included or incorporated by
reference therein or excluded therefrom or the statements contained in the exhibits to the
Registration Statement) and (ii) no facts have come to such counsel’s attention that have caused
such counsel to believe that the Registration Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the U.S. Final
Prospectus, as of its date and as of the Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
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to make the statements therein, in the light of the circumstances under which they were made, not
misleading (except that in each case such counsel need not express any view as to the financial
statements, schedules and other financial information included or incorporated by reference therein
or excluded therefrom or the statements contained in the exhibits to the Registration Statement,
including the Statement of Eligibility on Form T-1). In addition, such counsel shall state that on
the basis of the foregoing, no facts have come to such counsel’s attention that have caused it to
believe that the Disclosure Package, as of the Execution Time, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading (except that
such counsel need not express any view as to the financial statements, schedules and other
financial information included or incorporated by reference therein or excluded therefrom or the
statements contained in the exhibits to the Registration Statement, including the Statement of
Eligibility on Form T-1).
EXHIBIT D
FORM OF OPINION OF FASKEN XXXXXXXXX XXXXXXXX LLP
SPECIAL REGULATORY COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)
SPECIAL REGULATORY COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)
(i) Such counsel does not know of any Canadian statutes relating specifically to the
regulation of either or both of the Canadian broadcasting and telecommunications industries,
including any statutes of any province specifically relating to the regulation of either or
both of the Canadian broadcasting and telecommunications industries, that, in such counsel’s
judgment, are material to the operation of the businesses of the Company as described in the
U.S. Final Prospectus and the Canadian Final Prospectus other than the Broadcasting Act
(Canada), the Telecommunications Act (Canada), the Radiocommunication Act (Canada) and the
Copyright Act (Canada) (the “Communications Statutes”).
(ii) To such counsel’s knowledge, (i) each of the Company, Xxxx Satellite Services Inc.
and Star Choice Television Network Incorporated currently hold in good standing all permits,
licences, franchises, and approvals of governmental authorities and agencies required
pursuant to the Communications Statutes and are in material compliance with all orders,
rules, regulations and directions promulgated pursuant to such statutes and with all orders
and directions made in any legal or other proceedings by or before any Canadian court or
judicial or administrative board or tribunal or other governmental proceedings by or before
any Canadian governmental body with respect to the regulation of the Canadian broadcasting
or telecommunications industries pursuant to the Communications Statutes (the
“Communications Regulations”) that are necessary to conduct their respective businesses as
described in the U.S. Final Prospectus and the Canadian Final Prospectus (except where the
failure to do so would not, individually or in the aggregate, be expected, in our judgment,
to have a materially adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries considered as one
enterprise (a “Material Adverse Effect”)), (ii) no revocation or limitation of any such
permit, licence, franchise or approval is pending or threatened, (iii) each of the Company,
Shaw Satellite and Star Choice is not in default or in violation of any such permit,
licence, franchise, approval, order, rule, regulation or direction (except where such
default would not, individually or in the aggregate, be expected, in such counsel’s
judgment, to have a Material Adverse Effect), and (iv) the authorization, issuance and
delivery of the Securities and the compliance by the Company with the terms of the Indenture
do not, and assuming there has been no material change in circumstances, will not conflict
with or result in a breach of any of the terms or provisions of, or constitute a default
under, any of such permits, licences, franchises, approvals, orders, rules, regulations and
directions.
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(iii) Except as disclosed in the U.S. Final Prospectus and the Canadian Final
Prospectus, to such counsel’s knowledge, there is no threatened or pending change in the
Communications Statutes which could have a Material Adverse Effect.
(iv) The execution and delivery by the Company of, and the compliance by the Company
with its obligations under, this Underwriting Agreement, the Securities and the Indenture,
and the consummation of the transactions contemplated therein do not and, assuming there has
been no material change in existing circumstances as of the Closing Date, will not result in
any violation of, and do not and, assuming there has been no material change in existing
circumstances, will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default or permit acceleration) under, or result in the creation or
imposition of, any lien, charge or encumbrance upon any properties or assets of the Company
under (i) any of the Communications Regulations, or (ii) to such counsel’s knowledge, any
judgment, order or decree of any government, governmental, regulatory or administrative
agency, authority, commission or instrumentality or court having jurisdiction, pursuant to
Communications Statutes.
(v) All material aspects of the regulation of the Canadian broadcasting and
telecommunications businesses of the Company described in the U.S. Final Prospectus and the
Canadian Final Prospectus are subject to the exclusive constitutional jurisdiction of the
Parliament of Canada and hence are governed by the laws of Canada and provincial laws of
general application that are applicable to such business.
(vi) No consent, approval, permit, authorization, filing, recording, license,
exemption, order, registration, qualification or other requirement under the Communications
Statutes or any order, rule or regulation thereunder known to such counsel and applicable to
the Company, Shaw Satellite or Star Choice is required for the sale of the Securities, the
consummation of the transactions contemplated by this Underwriting Agreement and the
Indenture in connection with the execution, delivery and performance by and enforcement
against the Company of any of the Securities and the Indenture.
(vii) To such counsel’s knowledge, the statements which relate to
| (a) | the Communications Regulations, | ||
| (b) | governmental franchises and licences issued to the Company, Shaw Satellite and Star Choice pursuant to the Communications Regulations or otherwise issued to the Company, Shaw Satellite or Star Choice in connection with the regulation of the Canadian broadcasting or telecommunications industries, and | ||
| (c) | legal or other proceedings by or before any court or judicial or administrative board or tribunal or other governmental proceedings with respect to the regulation of the Canadian broadcasting and telecommunications industries |
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in the U.S. Final Prospectus and the Canadian Final Prospectus fairly summarize the
matters described therein.
Whenever an opinion set forth above with respect to the existence or absence of facts is
qualified by the phrase “to the best of such counsel’s knowledge” or “to such counsel’s
knowledge”, it is intended to indicate that during the course of such counsel’s representation of
the Company and, as a result of receiving and reviewing the certificates of the officers of the
Company, no information has come to the attention of such counsel that has given such counsel
actual knowledge of the existence or absence of such facts.
