Conditions of Closing. The obligations of the Dealers hereunder are subject to the satisfaction of the following conditions: (a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation. (b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec. (c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that: (i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing; (ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only; (iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened; (iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof); (v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected; (vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date; (vii) the Acquisition has not lapsed or been withdrawn; (viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement; (ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and (x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact; (d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings; (e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably; (f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and (g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to: (i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and (ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 2 contracts
Sources: Dealer Agreement, Dealer Agreement
Conditions of Closing. The obligations of Underwriters' obligation to purchase the Dealers hereunder are Offered Securities pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a1) The Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely on, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporationcircumstances, or (B) any law of general application applicable in alternatively provide directly to the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorizationUnderwriters, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Securities, and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificate and the performance of its obligations hereunder and thereunder and this Agreement, the Warrant Indenture and the Broker Warrant Certificate have each been duly executed and delivered by the Corporation and constitute a legal, valid and binding obligations of the Corporation enforceable against it in accordance with their respective terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Securities and the grant of the Over- Allotment Option do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles and the articles of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any British Columbia law and federal law applicable therein;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable Common Shares;
(h) the Warrants have been duly and validly created and issued in accordance with the provisions of the Warrant Indenture;
(i) the Additional Securities have been duly and validly authorized, and the Additional Offered Shares have been allotted and reserved for issuance and upon exercise of the Over- Allotment Option and receipt of payment of the consideration therefor, the applicable Additional Securities will be validly issued as fully paid and, if applicable, non-assessable Common Shares;
(j) the Warrant Shares and the Additional Warrant Shares issuable upon the exercise of the Warrants and the Additional Warrants, respectively, have been reserved and allotted for issuance and when issued in accordance with the provisions of the Warrant Indenture will be validly issued as fully paid and non-assessable Common Shares;
(k) the Broker Warrants have been duly and validly created and issued in accordance with the provisions of the Broker Warrant Certificate;
(l) the Broker Warrant Shares issuable upon the exercise of the Broker Warrants have been reserved and allotted for issuance and when issued in accordance with the provisions of the Broker Warrant Certificate will be validly issued as fully paid and non-assessable Common Shares;
(m) 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 Canadian Securities Laws to permit the Offered Securities to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over- Allotment Option to the Underwriters;
(n) the issuance and delivery of the Warrant Shares and the Additional Warrant Shares by the Corporation upon valid exercise of Warrants and Additional Warrants in accordance with the terms and conditions of the Warrant Indenture, respectively, is exempt from the prospectus requirements of Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus is required nor are other documents required to be filed, proceeding taken or approval, consent or authorization obtained by the Corporation under Canadian Securities Laws of the Qualifying Jurisdictions to permit the issuance and delivery of the Warrant Shares and the Additional Warrant Shares to holders thereof in the Qualifying Jurisdictions;
(o) the issuance and delivery of the Broker Warrant Shares by the Corporation in the Qualifying Jurisdictions upon valid exercise of Broker Warrants in accordance with the terms and conditions of the Broker Warrant Certificates is exempt from the prospectus requirements of Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus is required nor are other documents required to be filed, proceeding taken or approval, consent or authorization obtained by the Corporation under Canadian Securities Laws of the Qualifying Jurisdictions to permit the issuance and delivery of the Broker Warrant Shares to the holders thereof in the Qualifying Jurisdictions;
(p) the first trade of the Underlying Securities is exempt from the prospectus requirements of Canadian Securities Laws, and no documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations of regulatory authorities required to be obtained under the Canadian Securities Laws in connection with the first trade by the Underwriters, provided that the trade is not a control distribution as defined in National Instrument 45-102 Resale of Securities;
(q) the Corporation is a reporting issuer, or its equivalent, in each of the provinces of British Columbia and Ontario and it is not noted on the list of defaulting reporting issuers maintained by the regulatory authorities in the provinces of British Columbia or Ontario;
(r) National Securities Administrators Ltd., at its principal office located in Vancouver, British Columbia, has been appointed as the registrar and transfer agent for the Common Shares;
(s) National Securities Administrators Ltd., at its principal office located in Vancouver, British Columbia has been appointed as the Warrant Agent under the Warrant Indenture;
(t) the statements set forth in the Final Prospectus under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" are true, complete and accurate, subject to the limitations and qualifications set out therein;
(u) subject only to the standard listing conditions, the Listed Securities have been conditionally listed or approved for listing on the CSE; and
(v) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing; in a form acceptable to counsel to the Underwriters and their counsel, acting reasonably.
(2) if applicable, the Underwriters receiving, at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that registration of the Offered Securities offered and sold in the United States in accordance with this Agreement (including Schedule "A" hereto), if any, will not be required under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriters and their counsel, acting reasonably;
(3) the Underwriters receiving, at the Time of Closing, favourable legal opinions from legal counsel to the Corporation acceptable to the Underwriters, regarding each of its Subsidiaries in a form acceptable to the Underwriters and their counsel, acting reasonably, to the effect set out below:
(a) the Subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(4) the Underwriters receiving, at the Time of Closing, an auditors comfort letter dated the Closing Date from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(5) a certificate of the Corporation dated the Closing Date, addressed to the Underwriters and signed on the Corporation's behalf by its Chief Executive Officer and Chief Financial Officer or such other senior officers of the Corporation satisfactory to the Underwriters, acting reasonably, certifying that:
(a) the Corporation has complied with respect and satisfied, in all material respects, all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Date;
(b) the representations and warranties of the Corporation set forth in this Agreement are true and correct at the Closing Date, as if made at such matters time;
(c) the Due Diligence Session Responses, subject to the qualifications and provisions contained therein, are true and correct in all material respects as at the Dealers may reasonably require relating to Closing Date, as if made at such time;
(d) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation, or prohibiting or restricting the distribution of any securities has been made, or proceedings have been announced, commenced or threatened for the Notes making of any such order, ruling or determination by any securities commission or similar regulatory authority or by any other competent authority, and has not been rescinded, revoked or withdrawn, and, to the extent governed knowledge of such officers, no proceedings for such purpose are pending, contemplated or threatened;
(e) the Corporation has made and/or obtained, at or prior to the Time of Closing, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound in respect of the execution and delivery of this Agreement and the consummation of the other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following the Closing Date and other than in respect of the filing of the Preliminary Prospectus and the Final Prospectus); and
(f) such other matters as may be reasonably requested by the laws of Alberta, Ontario Underwriters or Québectheir legal counsel.
(c6) the Underwriters receiving, at the Time of Closing, a certificate from National Securities Administrators Ltd. as to the number of Common Shares issued and outstanding as at the end of business day on the date prior to the Closing Date;
(7) at the Time of Closing, no order, ruling or determination having the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer effect of ceasing or suspending trading in any securities of the Corporation or such other officers prohibiting the sale of the Corporation as may be acceptable Offered Securities or any of the Corporation's issued securities being issued and no proceeding for such purpose being pending or, to the Dealers, acting reasonably, certifying for and on behalf knowledge of the Corporation (without personal liability) that:Corporation, threatened by any securities regulatory authority or the CSE;
(i8) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Listed Securities on the CSE, subject only to satisfaction by the Corporation of standard listing conditions;
(9) the Corporation has complied complying with all the of its covenants and satisfied all the terms and conditions of obligations under this Agreement and the Trust Indenture on its part required to be complied with and satisfied at or prior to the Time of Closing;
(ii10) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures Warrant Indenture shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f11) evidence satisfactory to the Dealers that the Corporation’s board Underwriters not having exercised any rights of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretotermination set forth herein; and
(g12) all actions required to be taken by or on behalf the Underwriters having received at the Time of Closing such further certificates, opinions of counsel and other documentation from the Corporation and its Subsidiariescontemplated herein, as applicableprovided, including however, that the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at Underwriters or their counsel shall reasonably request any such certificate or document within a reasonable period prior to the Time of Closing so as to:
(i) execute that is sufficient for the Corporation to obtain and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) createsuch certificate, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indentureopinion or document.
Appears in 2 contracts
Sources: Underwriting Agreement, Underwriting Agreement
Conditions of Closing. 9.1 The obligations of the Dealers hereunder are subject to Agent on Closing will be conditional upon the satisfaction of the following conditionsfollowing:
(a) at the Time Issuer will be a “reporting issuer” in all provinces and territories of Canada, the Issuer’s common shares will be listed and posted for trading on the Exchange, and the Issuer will not be in default of any of the requirements of the Acts or any of the administrative policies or notices of the Exchange;
(b) the Issuer will have delivered to the Agent and its legal counsel favourable opinions of the Issuer’s legal counsel dated as of the date of the Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver in such form as is acceptable to the Dealers Agent and their counsel, Torys LLP, a favourable its legal opinion with respect counsel as to all such legal matters as reasonably requested by the Dealers may reasonably request, including, without limiting Agent relating to the generality business of the foregoing: to the existence Issuer and corporate power and capacity of the Corporation; the creation, authorization, issue issuance and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Securities;
(c) at the Time of Closing, the Corporation Issuer will deliver have delivered to the Dealers Agent and its legal counsel such other legal opinions as may be reasonably requested by the Agent and its legal counsel, including without limitation, a corporate opinion relating to the Material Subsidiaries;
(d) the Issuer will have delivered to the Agent and its legal counsel a certificate of the Issuer, dated as of such date requested by the Closing Date addressed to the Dealers and their counsel, Agent and signed by the chief executive officer and the chief financial officer of the Corporation Issuer, or by such other officers approved by the Agent, certifying certain facts specified by the Agent and relating to the Issuer and its affairs;
(e) the Agent will have completed its due diligence review of the Corporation as may be acceptable Issuer and the results will have been satisfactory to the DealersAgent, acting reasonably, certifying for in its sole discretion;
(f) the Issuer will have delivered to the Agent and on behalf its legal counsel such other certificates relating to the Private Placement or the affairs of the Corporation Issuer as the Agent or its legal counsel may reasonably request; and
(without personal liabilityg) thateach representation and warranty of the Issuer which is contained in this Agreement continues to be true, and the Issuer has performed or complied with all of its covenants, agreements and obligations under this Agreement.
9.2 The Closing and the obligations of the Issuer and the Agent to complete the issue and sale of the Securities are subject to:
(a) receipt of all required regulatory approvals for or acceptance of the Exchange for:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this AgreementSecurities; and
(ii) createthe listing on the Exchange of the Shares, issue and sell the Notes in accordance with the provisions of this Agreement Warrant Shares and the Trust IndentureAgent’s Shares; and
(b) the removal or partial revocation of any cease trading order or trading suspension made by any competent authority to the extent necessary to complete the Private Placement.
Appears in 2 contracts
Sources: Agency Agreement (Northstar Healthcare Inc), Agency Agreement (Northstar Healthcare Inc)
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Underwriters to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Shares at the Closing Time, which conditions the Corporation covenants and agrees to use commercially reasonable efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Underwriters:
(a) at the Time of Closing, the Corporation will shall cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, Underwriters a favourable legal opinion addressed to the Underwriters dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriters acting reasonably, with respect to all such matters the following matters:
(i) as to the Dealers may reasonably request, including, without limiting the generality incorporation and valid existence of the foregoing: Corporation and as to the existence and corporate capacity, power and capacity authority of the Corporation to carry out its obligations under this Agreement and to issue the Offered Shares;
(ii) that the Corporation is a reporting issuer in each of the Qualifying Provinces that recognizes the concept of a reporting issuer and is not noted on a list maintained by the Canadian securities regulators as being in default under Securities Laws in the Qualifying Provinces;
(iii) as to the authorized and issued capital of the Corporation; ;
(iv) that the creationCorporation has all necessary corporate capacity and power under the Laws of Canada to carry on its business as presently carried on and to own, authorization, issue lease and sale operate its properties and assets;
(v) that all necessary corporate action has been taken by the Corporation to authorize the execution of each of the Notes; Preliminary Prospectus, the authorization Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators;
(vi) that necessary corporate action has been taken by the Corporation to authorize the issuance of the Trust Indenture; Offered Shares;
(vii) that upon payment of the purchase price therefor, the Purchased Shares will be duly and validly issued as fully paid and non-assessable shares of the Corporation;
(viii) that the attributes Additional Shares issuable upon exercise of the Notes are consistent in Over-Allotment Option have been reserved for issuance by the Corporation and, upon the payment of the purchase price therefor, the Additional Shares will be duly and validly issued as fully paid and non-assessable shares of the Corporation;
(ix) that all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes necessary corporate action has been approved taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been executed and delivered by the Corporation and complies with the provisions constitute a legal, valid and binding obligation of the Trust Indenture; Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office equitable remedies may be granted in the City discretion of Torontoa court of competent jurisdiction and that enforcement of rights to indemnity, has been duly appointed contribution and waiver of contribution may be limited by the Corporation as the paying agent in respect applicable law;
(x) that none of the Notes under the Trust Indenture; the enforceability execution and delivery of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and hereunder nor the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Offered Shares to be issued and sold by the Corporation at the Closing Time will conflict with or result in any breach of the articles of incorporation or by-laws of the Corporation, any resolutions of the directors or shareholders of the Corporation or any applicable corporate Law or Securities Laws of the Qualifying Provinces;
(xi) that all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Provinces have been obtained by the Corporation to purchasers qualify the distribution to the public of the Offered Shares in each of the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Qualifying Provinces through investment dealers who are duly registered under applicable Securities Laws and no prospectus will be requiredwho have complied with the relevant provisions of applicable Securities Laws;
(xii) that the rights, no other document will be required privileges, restrictions and conditions attaching to be filedthe Offered Shares conform in all material respects to the descriptions thereof contained in the Final Prospectus;
(xiii) that the statements set forth in the Final Prospectus under the caption “Eligibility for Investment” are accurate, no proceeding will be required subject to be taken the limitations and no approvalqualifications set out therein; and
(xiv) that subject only to the Standard Listing Conditions, permitthe Offered Shares have been conditionally approved for listing on the TSX. In connection with such opinion, consent, order, or authorization of any regulatory authority will be required counsel to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to them the Underwriters, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada the province in which they are qualified to practise and may rely, to the Provinces extent appropriate in the circumstances, as to matters of Ontariofact on certificates of officers of the Corporation and others;
(b) the Underwriters receiving at the Closing Time on the Closing Date, Québec, British Columbia and Alberta, (or alternatively make arrangements a legal opinion to have such opinions of local counsel directly be addressed to the Dealers)Underwriters, in form and substance acceptable to GMP, acting reasonably, from counsel to the Material Subsidiaries (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers), that (A) each of the Material Subsidiaries is a corporation existing under the laws of its jurisdiction of organization, and has all requisite corporate capacity, power and authority to carry on its business as now conducted and to own, lease and operate its property and assets; and (B) all of the issued and outstanding shares of capital of each of the Material Subsidiaries are registered in the name of the Corporation.;
(bc) if any Offered Shares are sold in the United States, the Underwriters receiving, at the Closing Time of Closing, on the Dealers will have received from their counsel, Torys LLPClosing Date, a legal opinion dated the Closing Date, to be addressed to the Underwriters, in form and substance acceptable to the Underwriters, acting reasonably, of ▇▇▇▇▇▇ & Whitney LLP, special United States legal counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of the Corporation), to the effect that the offer and sale in the United States of the Offered Shares is not required to be registered under U.S. Securities Laws if made in accordance with Schedule “A” to this Agreement;
(d) the Underwriters shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Underwriters may agree, certifying for and on behalf of the Corporation and without personal liability, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles of incorporation and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Shares to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(e) the Corporation shall cause each of the Corporation’s Auditors and Mettrum’s Auditors to deliver to the Underwriters a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed the information contained in the comfort letters referred to in subsection 5(a)(iii) hereof;
(f) the Dealers and their counselUnderwriters shall have received a certificate, and dated as of the Closing Date, signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as the Underwriters may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (and without personal liability) , to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied in all respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein in this Agreement and any certificate of the Corporation delivered hereunder are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification, in all respects) as of at the Time of Closing Time, with the same force and effect as if made on and as at the Time of Closing Time, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyby this Agreement;
(iii) the Corporation has obtained a receipt from the Principal Regulator under the Passport System and NP 11-202 evidencing that receipts have been issued by or on behalf of the Canadian Securities Regulators for the Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws of the Qualifying Provinces or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated, threatened, financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), business, affairs, operations, prospects, capital or prospects control of the Corporation and its Subsidiaries (subsidiaries taken as a whole), and (B) no transaction has been entered into by either the Corporation or any development involving a prospective of its subsidiaries which is material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of to the Corporation and its Subsidiaries (taken on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials (Supplementary Material, as they existed at the respective dates thereof);case may be; and
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that there has not since been corrected;
(vi) the Acquisition has not been terminated or amended no change in any material respect, no fact (which includes the disclosure of any previously undisclosed material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated fact) contained in the 2.7 AnnouncementFinal Prospectus which fact or change is, and or may be, of such a nature as to render any statement in the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on Final Prospectus misleading or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended untrue in any material respect, no material provision has been waived by the Corporation and no event has occurred respect or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and which would result in all material respects as contemplated a misrepresentation in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change Final Prospectus or which would result in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, Final Prospectus not complying with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in factapplicable Securities Laws;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions consents, approvals, permits, authorizations or filings as may be required to be taken made or obtained by or on behalf the Corporation under applicable Securities Laws in the Qualifying Provinces and the United States necessary for the offer and sale of the Corporation Offered Shares, the execution and its Subsidiariesdelivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicableapplicable (other than, including the passing of all requisite resolutions in respect of the board Offering, the filing of directors reports required under applicable Securities Laws in the Qualifying Provinces and the United States within the prescribed time periods and the filing of standard documents with the TSX, which documents shall be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the TSX) and the Underwriters shall have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the Offered Shares to be conditionally listed on the TSX, subject only to the Standard Listing Conditions;
(h) the Underwriters shall have received, at the Closing Time, the Lock-Up Agreements;
(i) the Underwriters shall have received, at the Closing Time, a certificate of compliance or status in respect of the Corporation and each Subsidiary and all requisite filings with governmental authoritiesof the Subsidiaries, will have occurred at or which certificates shall be dated no more than two Business Days prior to the Time of Closing so as to:Date;
(ij) execute the Underwriters shall have received a certificate from Computershare Trust Company of Canada Inc. as to the number of Common Shares issued and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell outstanding as at the Notes in accordance with date immediately prior to the provisions of this Agreement and the Trust IndentureClosing Date.
Appears in 1 contract
Conditions of Closing. The Underwriters’ obligations hereunder as to the Securities to be delivered at each Time of Closing shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Dealers Corporation herein are true and correct as of the Applicable Time and true and correct as though expressly made at and as of such Time of Closing, the condition that the Corporation shall have performed in all material respects all of its obligations hereunder are subject theretofore to the satisfaction of be performed, and the following conditions:
(1) the Underwriters shall have received, at such Time of Closing, favourable legal opinions dated the Closing Date or Option Closing Date, as applicable, from the Corporation’s Canadian counsel, Osler, ▇▇▇▇▇▇ & Harcourt LLP, in form and substance satisfactory to the Underwriters, with respect to the following matters:
(a) the Corporation is a corporation existing under the laws of the Province of Ontario and there are no restrictions on the power and capacity of the Corporation to own property or to carry on business;
(b) the Corporation is authorized to issue an unlimited number of Common Shares and 311,933 convertible preference shares;
(c) there are no restrictions on the corporate power of the Corporation to execute, deliver and perform its obligations under this Agreement or to issue and sell the Securities to be delivered at such Time of Closing;
(d) no consent, authorization, approval, license or order of, or filing, registration or qualification by the Corporation or any of its subsidiaries with, any court or governmental or regulatory agency or body in the Province of Ontario under the laws of the Province of Ontario or the federal laws of Canada applicable therein is necessary or required in connection with the due authorization, execution, delivery and performance by the Corporation of this Agreement or the offering, issuance or sale of the Securities;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Canadian Preliminary Prospectus and the Canadian Final Prospectus and the filing thereof with the Canadian Securities Commissions;
(f) all necessary corporate action has been taken by the Corporation to duly authorize the execution and delivery of this Agreement and the performance of its obligations thereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(g) all necessary corporate action has been taken by the Corporation to authorize the creation, issuance, sale and delivery of the Securities to be delivered at such Time of Closing;
(h) the execution and delivery of this Agreement and the performance of its obligations thereunder by the Corporation do not:
(i) violate any provision of any law, statute, rule or regulation as presently in effect in the Province of Ontario; or
(ii) conflict with or contravene the articles of amalgamation or by-laws of the Corporation.
(i) the TSX has approved the listing of the Securities to be delivered at such Time of Closing subject only to the filing of documents in accordance with the requirements of the TSX and notice of issuance;
(j) upon receipt of payment for the Securities to be delivered at such Time of Closing in accordance with the terms of the Underwriting Agreement, such Securities will be validly issued and fully-paid and non-assessable;
(k) 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 Canadian Securities Laws to qualify the Securities for distribution and sale in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration;
(l) Computershare Investor Services Inc. has been duly appointed as the transfer agent and registrar for the Common Shares;
(m) the Securities, if listed on a Designated Stock Exchange or if the Corporation qualifies as a Public Corporation, are qualified investments under the Tax Act for trusts governed by the Plans;
(n) the statements under the heading “Certain Canadian Federal Income Tax Considerations” in the Canadian Final Prospectus are true and correct;
(o) the attributes of the Common Shares conform in all material respects with the description contained in the Canadian Final Prospectus under the caption “Description of Share Capital”; and
(p) the form of the definitive share certificate representing the Securities to be delivered at such Time of Closing complies with the provisions of the Business Corporations Act (Ontario) and has been duly approved by the Corporation; In connection with such opinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to the Underwriters, acting reasonably, as to the qualification for distribution of the Securities or such opinions as may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(2) the Underwriters shall have received, at such Time of Closing, the favourable legal opinion dated the Closing Date or Option Closing Date, as applicable, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Corporation, in form and substance satisfactory to the Underwriters, with respect to the following matters:
(a) all regulatory consents, authorizations, approvals and filings required to be obtained or made by the Corporation will cause under the Federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Securities to be delivered at such Time of Closing by the Corporation to the Underwriters have been obtained or made;
(b) the Corporation is not an “investment company” as defined in the United States Investment Company Act of 1940, as amended; and
(c) such counsel shall state in a separate letter that they do not assume any responsibility for the accuracy, completeness or fairness of any of the statements made in the Registration Statement or the U.S. Final Prospectus, except as set forth under the captions “Material Income Tax Considerations—Material U.S. Federal Income Tax Considerations”, insofar as they relate to provisions of U.S. Federal income tax law therein described, and they do not express any opinion or belief as to the financial statements or other financial data derived from accounting records, as to the report of management’s assessment of the effectiveness of internal control over financial reporting or the auditors’ attestation report thereon, as to the description of the differences between generally accepted accounting principles in Canada and those in the United States or as to the statements relating to reserves, each as included in the Registration Statement or the U.S. Final Prospectus; assuming the compliance of the Canadian Final Prospectus, including the documents incorporated by reference therein, with the requirements of the securities laws, rules and regulations of the Qualifying Jurisdictions as interpreted and applied by the Principal Regulator, the Registration Statement, as of its effective date, and the U.S. Final Prospectus, as of the date of the U.S. Final Prospectus, appeared on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act and the applicable rules and regulations of the SEC thereunder. Further, nothing that came to such counsel’s attention in the course of its review has caused such counsel to believe that (i) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that (ii) the U.S. Final Prospectus, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Also, nothing that has come to such counsel’s attention has caused such counsel to believe that the U.S. Final Prospectus, as of the Closing Date or Option Closing Date, as applicable, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Underwriters shall have received, at the First Time of Closing, a favourable legal opinion dated the Closing Date, in form and substance satisfactory to the Underwriters, from Osler, ▇▇▇▇▇▇ & Harcourt LLP, regarding compliance with the laws of Québec relating to the use of the French language in connection with the documents (including the Canadian Preliminary Prospectus, the Canadian Final Prospectus and any Canadian Prospectus Amendment, other than with respect to Financial Information therein) to be delivered to purchasers in Québec;
(4) the Underwriters shall have received, at such Time of Closing, legal opinions from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Shearman & Sterling LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such legal matters as the Dealers Underwriters may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.request;
(c5) the Underwriters shall have received, at the such Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counselor Option Closing Date, and as applicable, signed by the chief executive officer and the chief financial officer of the Corporation Secretary or such other officers officer(s) of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonablyin form and content satisfactory to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability, with respect to:
(a) the articles and by-laws of the Corporation;
(b) the resolutions of the Corporation’s board of directors relevant to the Offering Documents and the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers of the Corporation;
(6) the Underwriters shall have received, at the First Time of Closing, comfort letters dated the Closing Date from the auditors of the Corporation, KPMG LLP, in form and substance satisfactory to the Underwriters, bringing forward to a date not more than two business days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(f) hereof;
(7) the Underwriters shall have received, at such Time of Closing, a certificate dated the Closing Date or Option Closing Date, as applicable, signed by the President and Chief Executive Officer of the Corporation and the Executive Vice President and Chief Financial Officer of the Corporation, or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation and without personal liability, after having made due enquiries and after having carefully examined the Offering Documents, that:
(ia) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the such Time of Closing;
(iib) the representations and warranties of the Corporation contained herein herein, including but not limited to the representations and warranties contained in Section 5(3) and Section 8 hereof, are true and correct in all material respects as of the at such Time of Closing Closing, with the same force and effect as if made on and as at the such Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) a Passport Receipt has been issued by the Principal Regulator for the Canadian Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Applicable Securities Laws or by any regulatory authority;
(ivd) since the respective dates date of the Disclosure MaterialsCanadian Final Prospectus, there has been no material adverse change, financial or otherwise, change in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) operations or capital of the Corporation and its Subsidiaries (taken as subsidiaries on a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notesconsolidated basis; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by Corporation is a “reporting issuer” or its equivalent under the securities laws of each of the Corporation and the Trust Company in form and substance satisfactory to the DealersQualifying Jurisdictions, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes is eligible in accordance with the provisions of this Agreement NI 44-101 to file a short form prospectus with the Securities Commissions in the Qualifying Jurisdictions and is eligible to file a registration statement on Form F-10 with the Trust IndentureSEC;
(8) the Underwriters shall have received, at such Time of Closing, a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at a date no more than two business days prior to the Closing Date or Option Closing Date, as applicable;
(9) the Underwriters shall have received, at such Time of Closing, a certificate of status in respect of the Corporation issued by the appropriate regulatory authority in the jurisdiction in which the Corporation is formed, which certificate shall be dated no more than two business days prior to the Closing Date or Option Closing Date, as applicable;
(10) the Underwriters shall have received, at such Time of Closing, a certificate confirming the Corporation is a reporting issuer or equivalent from each Securities Commission in the Qualifying Jurisdictions that issues such certificates and confirmation from the Corporation that it is not included on any list of defaulting reporting issuers maintained by the Securities Commissions in the Qualifying Jurisdictions in which such lists are maintained;
(11) the Underwriters shall have received, at the First Time of Closing, executed lock-up agreements substantially in the form attached as Schedule “B” hereto from the persons listed in Schedule “C: hereto;
(12) the Financial Industry Regulatory Authority, Inc. shall not have raised any objections (or any such objections shall have been resolved) with respect to the fairness or reasonableness of the underwriting arrangements contemplated hereby;
(13) the Registration Statement shall have become effective; and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the U.S. Securities Act or proceedings therefor initiated or threatened by the SEC, no order having the effect of ceasing or suspending the distribution of the Securities or the trading in the Common Shares or any other securities of the Corporation shall have been issued or proceedings therefor initiated or threatened by any securities commission, securities regulatory authority or stock exchange in Canada or the United States, and any request on the part of the Principal Regulator or the SEC for additional information relating to the Securities or the Offering shall have been complied with to the reasonable satisfaction of counsel to the Underwriters;
(14) the Underwriters shall have received at such Time of Closing such further certificates, opinions of counsel and other documentation from the Corporation as they may reasonably require.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Units) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public in Canada and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is validly incorporated and exists under the Business Corporations Act (Ontario) and has all requisite corporate power and capacity to carry on its business as currently conducted and to own and lease properties and assets;
(b) the authorized and issued capital of the Corporation, prior to the issue of the Offered Securities;
(c) the Subsidiary is the only subsidiary of the Corporation, and all securities of the Subsidiary are owned by the Corporation are held, directly or indirectly, free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims and demands whatsoever other than pledges of such securities to the Corporation’s lenders;
(d) the Corporation has all necessary corporate power, capacity and authority to
(i) execute, deliver and perform its obligations under this Agreement, the Subscription Agreements, the Warrant Indenture and the Broker Warrant Certificates, as applicable, (ii) to create, issue and sell the Unit Shares and Unit Warrants, and (iii) to issue the Broker Warrants, Broker Unit Warrants and Corporate Finance Shares;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Subscription Agreements, the Warrant Indenture and the Broker Warrant Certificates, as applicable, and the performance of its obligations under this Agreement, the Subscription Agreements, the Warrant Indenture and the Broker Warrant Certificates, have been duly executed and delivered by the Corporation and each of this Agreement, the Warrant Indenture, the Subscription Agreements and the Broker Warrant Certificates constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Subscription Agreements, the Warrant Indenture and the Broker Warrant Certificates may be limited by Applicable Law;
(f) the execution and delivery of this Agreement, the Subscription Agreements, the Warrant Indenture and the Broker Warrant Certificates and the fulfilment of the terms of this Agreement, the Subscription Agreements, the Warrant Indenture and the Broker Warrant Certificates by the Corporation and the (i) issuance, sale and delivery of the Unit Shares and Unit Warrants comprising the Offered Securities, and (ii) issuance and delivery of the Broker Warrants, Broker Unit Warrants and Corporate Finance Shares, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Canadian Securities Laws;
(g) the Unit Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Corporate Finance Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) the Unit Warrants have been validly created and issued by the Corporation;
(j) the Broker Warrants have been validly created and issued by the Corporation;
(k) the Broker Unit Warrants, upon exercise of the Broker Warrants in accordance with the terms of the Broker Warrant Certificates, will be validly created and issued by the Corporation;
(l) the Warrant Shares, the Broker Shares and the Broker Unit Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, Broker Warrants and Broker Unit Warrants, as applicable, in accordance with their respective terms, the Warrant Shares, Broker Shares and Broker Unit Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(m) the offering, sale and issuance of the Unit Shares and Unit Warrants comprising the Offered Securities through the Underwriters to the Purchasers resident in the Offering Jurisdictions in Canada and the issuance and delivery of the Broker Warrants and the Broker Unit Warrants to the Underwriters in accordance with the terms of this Agreement are each exempt from the prospectus requirements of Canadian Securities Laws and the Corporation is not subject to the registration requirements of applicable Canadian Securities Laws, and the only filing, proceeding, approval, permit, consent or authorization required to be made, taken or obtained under Canadian Securities Laws is the filing by the Corporation with the applicable provincial Securities Regulators within the prescribed time periods, of a report in Form 45-106Fl, as prescribed by NI 45-106, prepared and executed in accordance with applicable Securities Laws, together with the requisite filing fees;
(n) no prospectus is required nor are any other documents, proceedings or approvals, permits, consents or authorizations of regulatory authorities required to be filed, taken or obtained (other than those which have been filed, taken or obtained) under Canadian Securities Laws to permit the issuance by the Corporation of the Warrant Shares, Broker Shares and Broker Unit Shares on the exercise of the Unit Warrants, Broker Warrants and Broker Unit Warrants in accordance with their terms;
(o) the first trade of the Unit Shares, Unit Warrants underlying the Offered Securities, Warrant Shares, Broker Warrants and Broker Unit Warrants and the Broker Shares and Broker Unit Shares issuable upon exercise of the Broker Warrants and Broker Unit Warrants, respectively, as well as the Corporate Finance Shares, being exempt from the prospectus requirements of applicable Securities Laws and no prospectus, offering memorandum or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Corporation under applicable Securities Laws to permit such trade through registrants registered under Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that at the Time time of Closingsuch trade:
(i) at the time of the trade, the Dealers will Corporation is and has been a “reporting issuer”, as defined in Canadian Securities Laws, in a province or territory of Canada for the four months immediately preceding the trade;
(ii) at the time of the first trade, at least four months have elapsed from the “distribution date” (as such term is defined in NI 45-102) of the applicable security;
(iii) the certificates representing the securities that are the subject of the trade were issued with a legend stating the prescribed restricted period in accordance with Section 2.5(2)3(i) of NI 45-102 or if the securities are entered into a direct registration or other electronic book entry system, or if the Purchaser did not directly receive a certificate representing the security, the Purchaser received written notice containing the legend restriction notation set out in Section 2.5(2)3(i) of NI 45-102;
(iv) the trade is not a control distribution (as defined in NI 45-102);
(v) no unusual effort is made to prepare the market or create a demand for the securities that are the subject of the trade;
(vi) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and
(vii) if the Purchaser is an insider or officer of the Corporation at the time of the trade, the Purchaser has no reasonable grounds to believe that the Corporation is in default of the securities legislation (as defined in National Instrument 14-101 – Definitions);
(p) TSX Trust Company, at its principal office in Toronto, Ontario, has been duly appointed as registrar and transfer agent for the Common Shares;
(q) TSX Trust Company, at its principal office in Toronto, Ontario, has been duly appointed as the trustee for the Unit Warrants under the Warrant Indenture;
(r) subject only to the standard listing conditions, the Unit Shares, Warrant Shares, Broker Shares, Corporate Finance Shares and Broker Unit Shares have been conditionally listed or approved for listing on the Exchange;
(s) the form of Broker Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation, applicable corporate law, and the requirements of the Exchange; and
(t) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time;
(2) with respect to the Subsidiary, the Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇▇▇ Biderman LLP (who may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials related to the Subsidiary), in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Subsidiary having been incorporated and existing under the Applicable Law of its jurisdictions of incorporation;
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct their business as currently being conducted;
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof; and
(d) the Subsidiary being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and have all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective business as currently conducted;
(3) if any sales of Units, Unit Shares and Unit Warrants are made to, or for the account or benefit of, persons in the United States or U.S. Persons, the Underwriters receiving a legal favourable opinion dated of U.S. counsel to the Closing DateCorporation, addressed to the Underwriters, in form and substance satisfactory to the DealersUnderwriters and their counsel, with respect to such matters as the Dealers may reasonably require relating acting reasonably, to the distribution effect that no registration is required under the U.S. Securities Act, in connection with the offer, sale and delivery of the Notes to Unit Shares and Warrants to, or for the extent governed by account or benefit of, persons in the laws of Alberta, Ontario or Québec.United States and U.S. Persons;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the sale of the Offered Securities, the issuance and delivery of the Broker Warrants, and the authorization of the Offering Documents and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters having received certificates dated the Closing Date of the Subsidiary signed by an appropriate officer of the Subsidiary addressed to the Underwriters and Underwriters’ counsel, in form and substance satisfactory to the Lead Underwriter, acting reasonably, certifying for and on behalf of the Subsidiary and not in their personal capacities that, to the actual knowledge of the persons signing such certificate, after having made due and relevant inquiry, as to (i) the corporate good standing, and (ii) as to the authorized capital and ownership thereof, of the Subsidiary;
(6) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiary, each dated within one Business Day prior to the Closing Date;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality qualification, in all respects) as of the Closing Time, as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects (except where already qualified by a materiality qualification, in which case the Corporation shall have complied in all respects) with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Unit Shares, Unit Warrants comprising the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority; and
(ivd) since the respective dates date of the Disclosure Materials, this Agreement (i) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the businessBusiness, affairs, operations, assetsBusiness Assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken as a whole), from that disclosed in ii) no transaction has been entered into by the Corporation’s Information Record Corporation or the Disclosure Materials (as they existed at Subsidiary which is material to the respective dates thereof)Corporation on a consolidated basis;
(v) none of 8) the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been correctedUnderwriters receiving fully executed Broker Warrant Certificates;
(vi9) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside DateUnderwriters receiving a fully executed Warrant Indenture;
(vii10) the Acquisition has not lapsed Subscription Agreements having been executed, endorsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respectauthenticated, no material provision has been waived by the Corporation and no event has occurred or condition exists whichas applicable, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company parties thereto in form and substance satisfactory to the DealersCorporation and the Underwriters, acting reasonably;
(f11) evidence satisfactory the Corporation having delivered, or caused to be delivered, the Unit Shares and Unit Warrants in accordance with Section 8;
(12) the Underwriters receiving a certificate from TSX Trust Company as to the Dealers that number of Common Shares issued and outstanding as at the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance end of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or Business Day on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or date prior to the Time of Closing so as to:Date;
(i13) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell conditions precedent provided for in the Notes in accordance with the provisions of this Agreement and the Trust Indenture.Warrant Inde
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Underwriters to purchase the satisfaction Offered Shares under this Agreement, which conditions the Company covenants to use its best efforts to fulfil within the times set out herein, and which conditions may be waived in writing in whole or in part by the Underwriters:
7.1 receipt by the Underwriters of the following conditionsdocuments:
7.1.1 ( A) favourable legal opinions, dated the Closing Date, from (ai) at the Time of Closing, the Corporation will cause its Company’s Canadian counsel, Blake, Goodmans LLP; (ii) Company’s US counsel ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to ; (iii) the Dealers and their Underwriters’ Canadian counsel, Torys Stikeman Elliott LLP and (iv) the Underwriters’ US counsel Shearman and Sterling LLP, a favourable legal opinion with respect to all such matters as the Dealers Lead Underwriter may reasonably request, including, without limiting the generality of the foregoing: to , the existence and corporate power and capacity of the Corporation; the creationexecution, authorizationcertification, issue and sale delivery of the Notes; Offered Shares, the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation authorization, execution, and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability delivery of this Agreement, the Trust Indenture fulfilment of and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance compliance with the terms and conditions of this Agreement, isthe enforceability of this Agreement, the appointment of Computershare Trust Company of Canada or will be exempt Computershare Trust Company N.A. as applicable, as the Company’s transfer agent, and (B) disclosure letters dated the Closing Date from each of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP and Shearman and Sterling LLP with respect to the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver Company’s disclosure in the Notes to such purchasers, other than documents filed with the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after SEC in connection with the date of issue and sale distribution of the Notes and the payment of any fees related thereto. It is Offered Shares, it being understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontariotheir respective jurisdictions, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers)as applicable, and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer Company’s officers; and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the DealersUnderwriters’ counsel may reasonably request; and such statements shall be true in fact;
(d) rely on the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for opinion of the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver Company’s counsel as to matters which specifically relate to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsCompany or any of its affiliates;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Conditions of Closing. (1) The obligations of the Dealers hereunder Underwriters and the Agents under this Agreement are subject to the satisfaction accuracy of the following conditions:
(a) at representations and warranties of the Time Company contained in this Agreement both as of Closingthe date of this Agreement and the Closing Time, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers case may reasonably requestbe, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation Company of its obligations under this Agreement and receipt by the Trust IndentureBroker Dealers, including the issuance on behalf of the NotesUnderwriters and the Agents, at the Closing Time, of the following, other than as provided below:
(a) a favourable legal opinion dated the Closing Date from the Company’s Counsel, addressed to the Agents and the Underwriters, in form and substance satisfactory to the Broker Dealers, on behalf of the Agents and the Underwriters, acting reasonably, together with corresponding opinions (where relevant) of local counsel to the Company in relation to the laws of the Selling Jurisdictions in Canada in which the Offered Securities are sold;
(b) a favourable legal opinion dated the Closing Date from the Company’s Counsel, addressed to the Agents and the Underwriters, in form and substance satisfactory to the Broker Dealers, on behalf of the Agents and the Underwriters, acting reasonably, (i) that each of the Company and each Company Material Subsidiary is a company validly existing under its jurisdiction of incorporation; (ii) that each of the Company and Company Material Subsidiary has the corporate power and capacity to carry on its business and to own, lease and operates and its properties and assets and in respect of the Company, to execute, deliver and perform its obligations under the Transaction Agreements; (iii) with respect to the authorized capital of the Company and each Company Material Subsidiary; (iv) that the execution and delivery of the Transaction Agreements and the performance of the transactions contemplated by the Transaction Agreements do not and will not result in a breach of, and do not create a state of facts which, after notice or lapse of time or both, will result in a breach of and do not and will not conflict with, any of (A) the terms, conditions or provisions of the constating constitutional documents of the CorporationCompany, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions resolutions of the CBCA and the Business Corporations Act (Ontario); the issuance directors, officers or shareholders of the Notes under Company or the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application laws of the Province of Ontario British Columbia or the laws of Canada applicable therein is therein; (v) that all necessary in order corporate action has been taken by the Company to preserve or protect authorize the validity or enforceability execution and delivery by it of each of the Trust IndentureTransaction Agreements, any documents delivered thereunder and the performance of its obligations under the Transaction Agreements; (vi) that all necessary corporate action has been taken by the Company to authorize the creation and issue of the Offered Securities and the Offered Securities have been or will be validly issued; and (vii) that the offering, issuance, sale and delivery each of the Notes by Transaction Agreements constitutes a legal, valid and binding obligation of, and is enforceable against, the Corporation to purchasers in the Offering Jurisdictions, Company in accordance with the its terms and conditions of this Agreement(subject to bankruptcy, isinsolvency, or will other laws affecting the rights of creditors generally, general equitable principles including the availability of equitable remedies and the qualification that no opinion need be exempt from expressed as to rights to indemnity or contribution);
(c) if any of the prospectus requirements of Canadian Offered Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, orderare offered or sold in the United States or to, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver for the Notes to such purchasersaccount or benefit of, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of ClosingU.S. Persons, the Dealers Underwriters will have received from their counsel, Torys LLP, at the Closing Time a customary and favourable legal opinion from U.S. counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer, sale and initial resale of the Notes Offered LIFE Units, provided, in each case, that such offer, sale and initial resale is made in compliance with this Agreement and the terms set out in Schedule “A” hereto and provided further that it is understood that no opinion is expressed as to any subsequent resale of any Offered LIFE Units or securities comprising part thereof. In providing the foregoing opinion, such counsel may rely upon the covenants, representation and warranties of the Company and the Underwriters and the Agents set forth in this Agreement and Schedule “A” hereto, and upon the covenants, representation and warranties of any Purchasers in the United States or who are acting for the account or benefit of U.S. Persons or persons in the United States;
(d) certificates or evidence of registration representing, in the aggregate, the Offered Securities issuable on such date registered in the name of CDS or its nominee or in such other name(s) as Canaccord Genuity will have directed;
(e) a certificate from the Transfer Agent as to the extent governed by number of Shares and Class B Shares issued and outstanding as at the laws end of Alberta, Ontario or Québec.the Business Day on the date prior to the Closing Date;
(cf) at the Time Cash Commission and cash portion of Closingthe Corporate Finance Fee payable in accordance with Section 9(1);
(g) satisfactory evidence of the payment of the TriView Corporate Finance Fee and the delivery of certificates or evidence of registration representing the Broker Special Warrants and Broker Warrants issuable to TriView, if applicable, issuable on such date and registered as TriView will have directed;
(h) evidence satisfactory that the Unit Shares, the Corporation will deliver Warrant Shares, the Broker Unit Shares, the Broker Unit Warrant Shares, have been conditionally approved for listing on the Exchange, subject only to the Dealers satisfaction of customary conditions;
(i) a certificate certificate, dated the Closing Date addressed to the Dealers and their counselDate, and signed on behalf of the Company, but without personal liability, by the chief executive officer and the chief financial officer Chief Financial Officer of the Corporation Company and by the Chief Executive Officer of the Company, or such other officers of the Corporation Company as may be reasonably acceptable to the Dealers, acting reasonablyUnderwriters and the Agents, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has Company having complied with all the covenants covenants, in all material respects, and satisfied all the terms and conditions conditions, in all material respects, of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closingsuch Closing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Company or prohibiting the sale of the Notes has Offered Securities or any of the Company’s issued securities having been issued issued, and no proceedings proceeding for such purpose have been instituted or are pending orpurpose, to the best of the knowledge of such officers, being pending or threatened;
(iii) subsequent to the date of this Agreement, there having not occurred a material change that could reasonably be expected to result in a Material Adverse Effect in respect of the Company, or the coming into existence or discovery of a new material fact;
(iv) since subsequent to the respective dates date of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respectthis Agreement, no material provision has been waived by the Corporation and no event has occurred or condition exists which, change relating to the Corporation’s Knowledge, will prevent Company having occurred since the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms date of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(iiv) createthe representations and warranties of the Company contained in this Agreement, the Warrant Indenture, the Special Warrant Indenture, the Broker Special Warrant Certificates, the Broker Warrant Certificates and in any certificates of the Company delivered pursuant to or in connection with this Agreement, being true and correct in all material respects (or, as regards specific representations and warranties if qualified by materiality, in all respects) as at the Closing Time, with the same force and effect as if made on and as at such Closing Time, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties will be true and correct in all material respects (or, as regards specific representations and warranties if qualified by materiality, in all respects), as of such date, after giving effect to the transactions contemplated by this Agreement.
(j) a certificate dated the Closing Date signed on behalf of the Company, but without personal liability, by the Chief Financial Officer of the Company or another officer acceptable to the Underwriters and the Agents, acting reasonably, in form and content satisfactory to the Underwriters and the Agents, acting reasonably, with respect to the constating documents of the Company; the resolutions of the directors of the Company relevant to the Offering, including the allotment, issue (or reservation for issue) and sell sale of the Notes in accordance with Offered Securities, the provisions authorization of this Agreement Agreement, the listing of the Unit Shares, the Warrant Shares, the Broker Unit Shares, the Broker Unit Warrant Shares, the Warrants and the Trust IndentureBroker Unit Warrants on the Exchange and transactions contemplated by this Agreement; and the incumbency and signatures of signing officers of the Company;
(k) a certificate of status (or equivalent) for the Company and each Company Material Subsidiary dated within one Business Day (or such earlier or later date as the Underwriters and the Agents may accept) of the Closing Date; and
(l) all Authorizations or filings as may be required by any Governmental Authority, or any other third party necessary to complete the sale of the Offered Securities as contemplated herein will have been made or obtained; and
(m) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the securities underlying the Offered Securities or any of the Company’s issued securities will have been issued and no proceeding for such purpose will be pending or, to the knowledge of the Company, threatened by any Regulatory Authority.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Purchased Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of ClosingUnderwriters receiving favourable legal opinions from Stikeman Elliott LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (Ontario) and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) at the Time Corporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement, (ii) to create, issue and sell the Offered Shares, and (iii) to grant the Over-Allotment Option;
(c) the authorized and issued capital of Closingthe Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms of this Agreement by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Shares in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(i) subject to the qualifications and assumptions set out therein, the Dealers will statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(j) subject only to the standard listing conditions, the Offered Shares have received from been conditionally listed or approved for listing on the TSX; and
(k) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably.
(2) the Underwriters receiving favourable legal opinions from counsel to the Subsidiaries (other than Aphria (Arizona) Inc.) in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set out below:
(a) such Subsidiary having been incorporated and existing under the laws of its jurisdiction;
(b) such Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of such Subsidiary and to the ownership thereof;
(3) if any of the Offered Shares are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer and sale of such Offered Shares under Rule 144A, provided, in each case, that such offer, sale and delivery of Offered Shares in the United States is made in compliance with this Agreement and the terms set out in Schedule “C” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of any Offered Shares. In providing the foregoing opinion, such counsel may rely upon the covenants, representation and warranties of the Notes to Corporation and the extent governed by Underwriters set forth in this Agreement and Schedule “C” hereto, and upon the laws covenants, representation and warranties of Alberta, Ontario or Québec.any purchasers in the United States;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries (other than Aphria (Arizona) Inc.), each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its (B) no transaction has been entered into by the Corporation or the Subsidiaries (taken which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials Supplementary Material, as the case may be; and
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as they existed at to render any statement in the respective dates thereof)Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws;
(v) none 8) the Underwriters receiving the executed lock-up agreements from each director and executive officer of the documents filed with Canadian Securities Regulators forming Corporation (other than as contemplated by Section 8(3)) in favour of the Corporation’s Information Record contained Underwriters in a misrepresentation form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(9) the Underwriters receiving a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the time end of business day on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii10) no order, ruling or determination having the Acquisition has not lapsed effect of ceasing or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended suspending trading in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating prohibiting the sale of the Notes; and
(x) as Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to such other matters the knowledge of a factual nature as the Dealers and Corporation, threatened by any securities regulatory authority or the Dealers’ counsel may reasonably request; and such statements shall be true in factTSX;
(d11) the credit rating issued Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX, subject only to satisfaction by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsof standard listing conditions;
(e12) the Supplemental Indentures shall have been executed Corporation complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i13) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Aphria Inc.)
Conditions of Closing. The obligations of Subscriber acknowledges that the Dealers hereunder are subject Corporation’s obligation to sell the Subscriber’s Securities to the satisfaction of Subscriber is subject to, among other things, the following conditions:
(a) at : the Time of ClosingSubscriber fully completing, executing and returning to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably requestSubscription Agreement, including, without limiting limitation, the generality of applicable schedules attached hereto by no later than the foregoing: to date and time set out on the existence and corporate power and capacity of the Corporationface page hereof; the creationoffer, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuanceissue, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be Subscriber’s Securities being exempt from the requirements to file a prospectus requirements or registration statement or any similar document under applicable securities laws in Canada or the United States and other applicable securities laws relating to the sale of Canadian Securities Laws and no prospectus will be requiredthe Subscriber’s Securities, no other document will or the Corporation having received such orders, consents or approvals as may be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, permit such sale without the requirement of filing a prospectus or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) similar document; the representations and warranties of the Corporation contained herein are Subscriber set out herein, including the applicable schedules attached hereto, being true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than on the Closing Date, in which case they ; and the Subscriber providing the Corporation with a duly and validly executed adherence document confirming their acceptance and understanding of the amended and restated shareholders’ agreement of the Corporation (and any addendum thereto) The Subscriber acknowledges and agrees that the acceptance of this offer will be true conditional upon the issue and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, Subscriber’s Securities to the best Subscriber being exempt from any prospectus requirements under applicable securities laws of Canada and the knowledge United States and the equivalent provisions of such officers, threatened;
(iv) since the respective dates securities laws of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the any other applicable jurisdiction. The Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in will be deemed to have accepted this Subscription Agreement upon the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none execution of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms acceptance of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Subscription Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved delivery on the issuance Closing Date of the Notes and all matters relating thereto; and
(g) all actions required Subscriber’s Securities to be taken by or on behalf upon the direction of the Corporation and its SubsidiariesSubscriber, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenturehereof.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Initial Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction following conditions having been met at the Closing Time:
(1) the Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, on the opinions of local counsel acceptable to counsel to the Underwriters as to the qualification of the following conditionsOffered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly continued and existing under the OBCA and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) the authorized and issued Common Shares of the Corporation;
(c) the Corporation has the requisite corporate power and authority to enter into this Agreement and to perform its obligations set out herein, and the Agreement has been duly executed and delivered by the Corporation and constitute a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with their terms;
(d) the execution and delivery of this Agreement and the fulfilment of the terms of this Agreement by the Corporation and the issuance, sale and delivery of the Offered Securities, the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles and articles of the Corporation, or any applicable Canadian Securities Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution of each of the Offering Documents (and any Prospectus Amendment) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(f) the Initial Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(g) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares been duly and validly, allotted and reserved for issuance by the Corporation and, upon the due exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares will issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Securities in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(i) subject to the qualifications, limitations and assumptions set out therein, the statements set forth in the Prospectus under the caption “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(j) subject only to the standard listing conditions, the Initial Shares and the Over-Allotment Shares have been conditionally listed or approved for listing on the TSX-V;
(k) TSX Trust Company has been duly appointed as registrar and transfer agent of the Common Shares; and
(l) the attributes of the Initial Shares and the Over-Allotment Shares conform in all material respects with the description thereof contained in the Prospectus; in form and substance acceptable to the Underwriters and their counsel, acting reasonably.
(2) the Underwriters receiving a favourable legal opinion in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to be delivered to the Underwriters with respect to:
(a) such Subsidiaries having been incorporated and existing under the Applicable Law of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and assets and to conduct their business as currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and have all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective business as currently conducted;
(3) the Underwriters receiving a favourable legal opinion in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to be delivered to the Underwriters with respect to the Material Mining Properties;
(4) if any of the Initial Shares or Over-Allotment Shares are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion, dated the Closing Date, of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver special United States counsel for the Corporation, addressed to the Dealers Underwriters and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may in form and substance reasonably request, including, without limiting the generality of the foregoing: satisfactory to the existence and corporate power and capacity of Underwriters, to the Corporation; effect that no registration is required under the creation, authorization, issue U.S. Securities Act in connection with the offer and sale of the NotesInitial Shares and Over-Allotment Shares in the United States; the authorization provided, that such offer, resale and delivery of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof Initial Shares and Over-Allotment Shares in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies United States is made in compliance with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not terms set out in Schedule “A” hereto and will not result in a breach provided further that it being understood that no opinion is expressed as to any subsequent resale of any of the Initial Shares or Over-Allotment Shares;
(A5) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on Underwriters having received certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option and the authorization of this Agreement and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(7) the Underwriters receiving an auditor’s “bring down” comfort letter dated the Closing Date from the Corporation’s Auditors, in form and substance satisfactory to the Joint-Bookrunners, on behalf of the Underwriters, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(8) the Corporation will cause its officers and directors to execute and deliver to the Underwriters signed lock-up agreements, in form and content acceptable to the Underwriters, acting reasonably, on or before the Closing Time, pursuant to which each such person agrees, for a period beginning on the Closing Date and ending 90 days after the Closing Date, not to, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, or otherwise dispose of, or transfer, or announce any intention to do so, any Common Shares, whether now owned directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership, or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise other than pursuant to a take-over bid or any other similar transaction made generally to all of the shareholders of the Corporation, or with the prior written consent of BMO, such consent not to be unreasonably withheld;
(9) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Joint-Bookrunners, on behalf of the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(iic) no order, ruling or determination having the representations and warranties effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Securities or any other securities of the Corporation contained herein has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority; and
(d) the Prospectus Supplement is true and correct in all material respects and contains no misrepresentation, constitute full, true and plain disclosure of all material facts relating to the Offered Securities and to the Corporation and its Subsidiaries considered as a whole and do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the Time circumstances in which they were made, not misleading;
(10) the Underwriters receiving a certificate from TSX Trust Company as to the number of Closing with the same force Common Shares issued and effect outstanding as if made at the Time end of Closing after giving effect the Business Day on the date prior to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii11) no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Securities or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSX-V;
(iv12) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materials, there has been no material adverse change, financial approval (or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional approval) of the Corporation listing and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital posting for trading of the Initial Shares and Over-Allotment Shares on the TSX-V, subject only to satisfaction by the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)of standard listing conditions;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi13) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i14) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii15) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Closing Time of Closingfavourable legal opinions from Goodmans LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public, certain corporate matters and as to other matters governed by the laws of jurisdictions in Canada other than Canada the provinces and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements territories in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below:
(a) the Corporation is a corporation validly amalgamated and existing under the Canada Business Corporations Act and has all requisite corporate power and capacity to own and lease its properties and assets as described in the Offering Documents;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms hereof by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) 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 Canadian Securities Laws to qualify the issuance, distribution and sale of the Offered Shares in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over-Allotment Option to the Underwriters;
(j) subject to the qualifications set out in the Prospectus under the heading “Eligibility for Investment”, the Offered Shares will, on the Closing Date, be a “qualified investment” under the Income Tax Act (Canada) for a trust governed by a registered retirement savings plan, registered education savings plan, registered retirement income fund, deferred profit sharing plan, registered disability savings plan or tax free savings account;
(k) subject only to the standard listing conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(l) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in a form acceptable to counsel to the Underwriters, acting reasonably.
(2) the Underwriters receiving, at the Time of ClosingClosing Time, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that the offer and sale of Offered Shares to Substituted Purchasers in the United States in accordance with the U.S. Memoranda and this Agreement (including Schedule “B” hereto) will not be required to be registered under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriters and their counsel, with respect to such matters as acting reasonably;
(3) the Dealers may reasonably require relating Underwriters receiving at the Closing Time title opinions from legal counsel acceptable to the distribution Underwriters, regarding the right to or ownership of the Notes Material Properties in a form acceptable to the extent governed Underwriters and their counsel, acting reasonably and with regard to what is customary and practicable in the context to be delivered by the laws Closing Date in each jurisdiction;
(4) the Underwriters receiving at the Closing Time favourable legal opinions from legal counsel to the Corporation acceptable to the Underwriters, regarding the Material Subsidiaries in a form acceptable to the Underwriters and their counsel, acting reasonably, to the effect set out below:
(a) the Material Subsidiary having been incorporated and existing under its jurisdiction of Alberta, Ontario or Québec.incorporation;
(b) the Material Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Offering Documents; and
(c) at the Time of Closing, the Corporation will deliver as to the Dealers a certificate authorized and issued share capital of the Material Subsidiary and to the ownership thereof;
(5) the Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Material Subsidiaries, each dated within one (1) Business Day prior to the Closing Date, or as close to the Closing Date as practicable in the relevant jurisdictions;
(7) the Underwriters receiving, at the Closing Time, a “bring down” auditors comfort letter dated the Closing Date from the auditors of the Corporation, Deloitte LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(2)(c) hereof;
(8) the Underwriters receiving from the Corporation at the Closing Time, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiia) no order, ruling or determination having the effect of suspending the distribution or ceasing the trading or suspending prohibiting the sale distribution of the Notes Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority
(ivb) since the respective dates of the Disclosure Materials, there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries on a consolidated basis, or new material fact, or change in any material fact (taken as a whole), from that disclosed which includes the disclosure of any previously undisclosed material fact) contained in the Corporation’s Information Record Final Prospectus, which fact or change is, or may be, of such a nature as to render any statement in the Disclosure Materials (as they existed at Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the respective dates thereof)Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws or which would require an amendment to the Final Prospectus;
(vc) none the representations and warranties of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record Corporation contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in this Agreement, and in any material respect, no material provision has been waived by certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and correct in all material respects as contemplated in of the 2.7 AnnouncementClosing Time as if such representations and warranties were made as at the Closing Time, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior after giving effect to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as transactions contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Noteshereby; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for Corporation has complied in all material respects with all the Notes shall be at least “Baa1” (stable), covenants and satisfied in all material respects all the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” terms and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each conditions of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required on its part to be taken by or on behalf of the Corporation complied with and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time.
(i9) execute the Underwriters having received, at the Closing Time, a certificate from TSX Trust Company as to the number of Common Shares issued and deliver outstanding as at the end of Business Day on the date prior to the Closing Date;
(10) at the Closing Time, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the distribution of the Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to the knowledge of the Corporation, threatened by any securities regulatory authority or the TSX or NYSE;
(11) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX and the NYSE (subject, in the case of the NYSE, to notice of issuance), subject only to satisfaction by the Corporation of standard listing conditions;
(12) the Corporation complying with all of its covenants and obligations under this Agreement and all other documents contemplated under this Agreementrequired to be satisfied at or prior to the Closing Time;
(13) the Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received at the Closing Time such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The obligations following are conditions precedent to the obligation of the Dealers hereunder Underwriter to purchase the Offered Shares pursuant to this Agreement at the Closing Time, and which conditions are subject to be satisfied by the Corporation at or prior to the satisfaction of Closing Time and may be waived in writing in whole or in part by the following conditionsUnderwriter:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to deliver to the Dealers and their counsel, Torys LLP, a Underwriter favourable legal opinion opinions dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriter, acting reasonably, with respect to the following matters:
(i) the Corporation is a corporation existing under the Canada Business Corporations Act and has all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets;
(ii) the Corporation has all necessary corporate capacity, power and authority: (A) to execute and deliver this Agreement and to perform its obligations hereunder, (B) to issue, sell and deliver the Offered Shares, and (C) to grant the Over-Allotment Option;
(iii) the authorized and issued and outstanding share capital of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in ;
(iv) all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes necessary corporate action has been approved taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Corporation and complies with the provisions constitutes a legal, valid and binding obligation of the Trust Indenture; that Corporation enforceable against the Corporation has appointed in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the Trustee as trustee under rights of creditors generally and subject to other standard assumptions and qualifications, including the Trust Indenture; qualifications that the Trustee, at its principal office equitable remedies may be granted in the City discretion of Torontoa court of competent jurisdiction and that enforcement of rights to indemnity, has been duly appointed contribution and waiver of contribution set out in this Agreement may be limited by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that Applicable Law;
(v) the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance fulfilment of the Notesterms hereof by the Corporation, the issuance, sale and delivery of the Offered Shares to be issued and sold by the Corporation at the Closing Time and the grant of the Over-Allotment Option do not and will not result in a breach of any or a default under, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with: (A) the provisions of the constating documents of the Corporation, or ; (B) any resolutions of the shareholders or directors (including of any committee thereof) of the Corporation; or (C) any applicable corporate law or Securities Laws;
(vi) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery, as applicable, of general application applicable each of the Preliminary Base Shelf Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators and the delivery of the U.S. Private Placement Memorandum;
(vii) the Offered Shares have been duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(viii) the rights, privileges, restrictions and conditions attaching to the Offered Shares and the Over-Allotment Option are accurately summarized in all material respects in the Offering Jurisdictions; Documents;
(ix) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the Trust Indenture complies with Canadian Securities Regulators in each of the Qualifying Jurisdictions have been obtained by the Corporation to qualify the distribution to the public of the Offered Shares in each of the Qualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over-Allotment Option to the Underwriter;
(x) the Corporation is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not on the list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(xi) subject to the qualifications and assumptions set out therein, the statements set forth in the Prospectus Supplement under the heading “Eligibility for Investment”, insofar as they purport to describe the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance laws referred to therein, are fair summaries of the Notes under matters discussed therein;
(xii) subject only to the Trust Indenture complies Standard Listing Conditions, the Offered Shares have been conditionally approved for listing on the TSXV; and
(xiii) such other matters as may reasonably be requested by the Underwriter no less than 48 hours prior to the Closing Time. In connection with the provisions of the CBCA; the reporting issuer status of such opinions, counsel to the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel to the Corporation in the Qualifying Jurisdictions acceptable to them counsel to the Underwriter, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Shares and the grant of the Over-Allotment Option, or opinions may be given directly by local counsel to the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local province in which counsel directly addressed to the Dealers)Corporation is qualified to practise, and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) at if any Offered Shares are offered and sold in the Time of ClosingUnited States, the Dealers Corporation will have received from their cause a favourable legal opinion to be delivered to the Underwriter by the Corporation’s special United States counsel, Torys LLPNaulth LPC, a dated and delivered on the Closing Date, such opinion to be subject to such qualifications and assumptions as the Underwriter may agree and in form and substance satisfactory to the Underwriter, acting reasonably, to the effect that no registration of the Offered Shares offered and sold in the United States will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Shares in the United States is made in accordance with this Agreement, including Schedule “A” hereto;
(c) the Corporation will cause favourable legal opinion opinions to be delivered to the Underwriter by the Corporation’s counsel, dated and delivered on the Closing Date, regarding the Corporation’s subsidiaries, in form and substance satisfactory to the Underwriter, acting reasonably, with respect to the following matters:
(i) the subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(ii) the subsidiary having all requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets; and
(i) the authorized and issued share capital of the subsidiary and the ownership thereof;
(d) the Corporation will cause favourable legal opinions or title reports to be delivered to the Underwriter by the Corporation’s counsel, dated and delivered on the Closing Date, in form and substance satisfactory to the DealersUnderwriter, acting reasonably, regarding the Material Property, including with respect to such matters as the Dealers may reasonably require following matters:
(i) the registered ownership of the mining claims, mining leases, concessions and real properties forming part of the Material Property;
(ii) the good standing under applicable legislation of the mining claims, mining leases, concessions and real properties forming part of the Material Property; and
(iii) the description of all registered encumbrances or Liens relating to the distribution mining claims, mining leases, concessions and real properties forming part of the Notes Material Property;
(e) the Corporation will cause the Corporation’s Auditors to deliver to Underwriter providing certain written representations, a comfort letter, dated and delivered on the Closing Date, in form and substance satisfactory to the extent governed by Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the laws of Alberta, Ontario or Québec.Closing Date the information contained in the comfort letter referred to in Section 6(a)(vii);
(cf) at the Time of Closing, the Corporation will deliver a certificate of the Corporation, addressed to the Dealers a certificate Underwriter and dated the Closing Date addressed to the Dealers and their counselDate, and signed on behalf of the Corporation, but without personal liability, by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other senior officers of the Corporation as may be acceptable to the DealersUnderwriter, acting reasonably, in form and substance satisfactory to the Underwriter, acting reasonably, certifying for with respect to: (i) the articles and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Shares to be issued and sold by the Corporation, the grant of the Over-Allotment Option, and the authorization of the Offering Documents, this Agreement and the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(g) the Corporation will deliver a certificate of the Corporation, addressed to the Underwriter and their counsel and dated the Closing Date, and signed on behalf of the Corporation (Corporation, but without personal liability) , by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other senior officers of the Corporation as may be acceptable to the Underwriter, acting reasonably, in form and substance satisfactory to the Underwriter, acting reasonably, certifying that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied or satisfied, other than conditions which have been waived by the Underwriter, at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of at the Time of Closing Time, with the same force and effect as if made on and as at the Time of Closing Time, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation or prohibiting the sale of the Offered Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated, threatened, or prospective, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects, capital or prospects control of the Corporation (on a consolidated basis), and (B) no transaction has been entered into by the Corporation or its subsidiaries which is material to the Corporation (on a consolidated basis), other than as disclosed in the Prospectus or any Supplementary Material, as the case may be; and
(v) there has been no new material fact or change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus, which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Prospectus or result in the Prospectus not complying with applicable Securities Laws;
(h) the Corporation will have made and/or obtained all necessary filings, approvals, permits, consents and acceptances to or from, as the case may be, the board of directors, the shareholders (if required), the Securities Regulators, the TSXV and any other applicable person required to be made or obtained by the Corporation in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Corporation and the Underwriter, acting reasonably, prior to the Closing Date, it being understood that the Underwriter will do all that is reasonably required to assist the Corporation to fulfil this condition;
(i) the Offering shall have been conditionally approved by the TSXV and the Common Shares issuable thereunder will have been conditionally approved for listing by the TSXV, subject only to satisfaction by the Corporation of the Standard Listing Conditions, and the Offered Shares will, at the opening of trading on the TSXV on the Closing Date, be listed and posted for trading on the TSXV;
(j) the Underwriter will have received a certificate from AST Trust Company (Canada) with respect to its appointment as transfer agent and registrar of the Common Shares and the number of Common Shares issued and outstanding as at the end of the Business Day immediately prior to the Closing Date;
(k) the Underwriter will have received a certificate of compliance or the equivalent in respect of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, subsidiaries issued by the appropriate regulatory authority in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of jurisdiction in which the Corporation and its Subsidiaries (taken as a whole)subsidiaries are incorporated, from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or dated within one Business Day prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(viil) the Acquisition has Underwriter will have received a reporting issuer certificate or report for each of the Qualifying Jurisdictions confirming that the Corporation is a reporting issuer not lapsed in default of applicable Canadian Securities Laws, dated or been withdrawnretrieved within two (2) Business Days prior to the Closing Date;
(viiim) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived Underwriter will have received executed copies of all the lock-up agreements required by the Corporation and no event has occurred or condition exists which, Underwriter pursuant to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation AgreementSection 8(g);
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Sources: Underwriting Agreement (Nouveau Monde Graphite Inc.)
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters to purchase the Purchased Units, if any, shall be subject to the satisfaction each of the following conditionsconditions being satisfied or waived at the Closing Time:
(a) at the Time of Closing, the Corporation will REIT shall cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Torys LLP, to deliver to the Dealers Underwriters and their counsel, Torys LLPat the Closing Time, a favourable legal opinion dated and delivered the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to all such matters as the Dealers Underwriters may reasonably request, including, without limiting request relating to the generality sale of the foregoing: Purchased Units, including that:
(i) the REIT is a trust duly formed and subsisting under the laws of the Province of Ontario and has not been dissolved and has all necessary power and authority to own its properties and carry on its business as now being conducted;
(ii) the REIT is authorized to issue an unlimited number of Units and as to the existence issued and corporate outstanding capital as of the Closing Date;
(iii) the REIT has all necessary power and capacity of the Corporation; the creationand has taken all necessary action, authorizationto authorize, issue execute and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation deliver this Agreement and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, this Agreement has been duly appointed executed and delivered by the Corporation as the paying agent in respect REIT and constitutes a legal, valid and binding obligation of the Notes under REIT enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the Trust Indenture; rights of creditors generally and subject to such other standard assumptions and qualifications including the enforceability qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of the rights to indemnity and contribution set out in this Agreement, the Trust Indenture and the Notes; that Agreement may be limited by applicable law;
(iv) the execution and delivery by of the Corporation of, Underwriting Agreement and the performance by the Corporation REIT of its obligations under this Agreement thereunder and the Trust Indenture, including the issuance consummation of the Notes, do not and transactions contemplated thereby will not result in a breach of any of of: (Ai) the provisions Declaration of the constating documents of the CorporationTrust, or (Bii) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorizationlaw, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute rule or regulation of general application of the Province of Ontario (or the laws of Canada applicable therein therein) applicable to the REIT or by which the REIT’s assets are bound, as the case may be; or (iii) to counsel’s knowledge, any order or judgment which is necessary binding on the REIT;
(v) the REIT is a reporting issuer in order to preserve or protect the validity or enforceability each of the Trust Indenture; provinces and that territories of Canada and is not included on the offering, issuance, sale list of defaulting reporting issuers maintained by any Securities Commission;
(vi) all necessary action has been taken by the REIT to authorize the execution and delivery of the Notes Prospectus Supplement and the filing thereof with the Securities Commissions;
(vii) the rights, privileges, restrictions and conditions attaching to the Units are accurately summarized in all material respects in the Prospectus Supplement;
(viii) all necessary documents have been filed by the Corporation REIT, all requisite proceedings by the REIT have been taken and all other legal requirements of the REIT have been fulfilled under the securities laws of each of the Qualifying Jurisdictions to purchasers qualify the distribution of the Purchased Units to the public in each of the Qualifying Jurisdictions through persons who are registered under applicable legislation in the Offering Jurisdictions, in accordance appropriate category and who have complied with the relevant provisions of such applicable legislation;
(ix) the form and terms of the definitive certificates representing the Purchased Units comply with all legal requirements and conditions rules of this Agreementthe TSX, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus the Declaration of Trust;
(x) the distribution of the Purchased Units complies with all laws of the Province of Québec relating to the use of the French language in connection therewith;
(xi) subject to the qualifications, assumptions, limitations and understandings set out therein, the statements as to matters of the federal laws of Canada set out in the Prospectus Supplement under the heading “Certain Canadian Federal Income Tax Considerations” fairly describe the principal Canadian federal income tax considerations as at the date thereof generally applicable under the Tax Act to a prospective purchaser of Purchased Units pursuant to the Prospectus Supplement;
(xii) subject to the qualifications, assumptions, limitations and understandings set out in the Prospectus Supplement under the heading “Eligibility for Investment”, the Purchased Units will be requiredqualified investments under the Tax Act for trusts governed by registered retirement savings plans, no other document will be required to be filedregistered retirement income funds, no proceeding will be required to be taken registered disability savings plans, deferred profit sharing plans, registered education savings plans and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver tax-free savings account; and
(xiii) the Notes to such purchasers, other than the filing of REIT is a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale mutual fund trust for purposes of the Notes and Tax Act. In connection with such opinion, counsel to the payment of any fees related thereto. It is understood that such counsel REIT may rely on the opinions of local counsel in any Qualifying Jurisdictions where they are not qualified to practice acceptable to them counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Purchased Units and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements Qualifying Jurisdictions in which they are not qualified to have such opinions of local counsel directly addressed to the Dealers), practise and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.REIT and others;
(b) at the Time of Closing, the Dealers will have received from their Seller shall cause its counsel, Torys LLP, to deliver to the Underwriters and their counsel, at the Closing Time, a legal opinion dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to such matters as the Underwriters may reasonably request relating to the sale of the Purchased Units, if any, including that:
(i) the Seller is incorporated and subsisting under the Canada Business Corporations Act and has not been dissolved and has all necessary corporate power and authority to own its properties and carry on its business as now being conducted;
(ii) the Seller has all necessary power and capacity and has taken all necessary action, to authorize, execute and deliver this Agreement and this Agreement has been duly executed and delivered by the Seller, and constitutes a legal, valid and binding obligation of the Seller enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of the rights to indemnity and contribution set out in this Agreement may be limited by applicable law;
(iii) the execution and delivery of the Underwriting Agreement and the performance by the Seller of its obligations thereunder and the consummation of the transactions contemplated thereby will not result in a breach of: (i) the Seller’s constating documents, (ii) any law, rule or regulation of the Province of Ontario (or the laws of Canada applicable therein) applicable to the Seller or by which the Seller’s assets are bound, as the case may be; or (iii) to counsel’s knowledge, any order or judgment which is binding on the Seller.
(c) the Underwriters shall have received an opinion of its counsel (subject to customary assumptions, qualifications and limitations (including reliance on the opinion of counsel to the REIT and the Seller, as appropriate)) to the Underwriters that addresses:
(i) the qualification of the Purchased Units for distribution to the public in each of the Qualifying Jurisdictions;
(ii) the enforceability of this Agreement;
(iii) the tax disclosure contained in the Prospectus Supplement; and
(iv) the description of the Trust Units in the Supplemented Prospectus.
(d) the Seller and the REIT shall cause its U.S. counsel, Torys LLP, to deliver to the Underwriters and their counsel, at the Closing Time, a legal opinion dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to such matters as the Underwriters may reasonably request relating to the sale of the Purchased Units to the effect that the offer and sale of the Purchased Units are not required to be registered under the U.S. Securities Act.
(e) the Underwriters shall have received a certificate of the REIT, dated the Closing Date signed an officer of the REIT satisfactory to the Underwriters, in form and content satisfactory to the Underwriters’ counsel, acting reasonably, with respect to:
(i) the Declaration of Trust;
(ii) the resolutions of the REIT’s board of trustees relevant to the sale of the Purchased Units and the authorization of the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the REIT.
(f) the Underwriters shall have received a certificate dated the Closing Date signed by an officer of the Seller as may be acceptable to the Underwriters, in form and content satisfactory to the Underwriters’ counsel, acting reasonably, with respect to:
(i) the articles and by-laws of the Seller;
(ii) the resolutions of the Seller relevant to the sale of the Purchased Units and the authorization of the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of the authorized signing authorities of the Seller.
(g) the REIT shall cause its auditors to deliver to the Underwriters a comfort letter, dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect to such matters as the Dealers may reasonably require relating acting reasonably, bringing forward to the distribution of Closing Date the Notes information contained in the comfort letter referred to the extent governed by the laws of Alberta, Ontario or Québec.in Subsection 5(a)(v) hereof;
(ch) at the Time of Closing, the Corporation will REIT shall deliver to the Dealers a certificate Underwriters, at the Closing Time, certificates of the REIT, dated the Closing Date Date, addressed to the Dealers and their counsel, Underwriters and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable REIT satisfactory to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (without personal liability) REIT after having made due enquiries, to the effect that:
(i) the Corporation REIT has complied complied, in all material respects, with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation REIT contained herein are true and correct correct, in all material respects (except representations and warranties that are subject to a materiality qualification, which shall be true and correct in all respects), as of at the Time of Closing Time, with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Units has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;; and
(iv) since the respective dates representations and warranties of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects REIT arising by reason of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital delivery of the Corporation Supplemented Prospectus and its Subsidiaries (taken any Supplementary Material are true and correct on and as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)Closing Time as if such documents had been dated the Closing Date and delivered to the Underwriters; and all such matters shall in fact be true and correct as at the Closing Time;
(vi) none the Seller shall deliver to the Underwriters, at the Closing Time, certificates dated the Closing Date addressed to the Underwriters and signed by two senior officers of the documents filed with Canadian Securities Regulators forming Seller satisfactory to the Corporation’s Information Record contained a misrepresentation as at Underwriters, certifying for and on behalf of the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists whichSeller after having made due enquiries, to the Corporation’s Knowledgeeffect that:
(i) the Seller has complied, will prevent in all material respects, with all the Acquisition Closing Date from occurring covenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Outside DateClosing Time;
(ii) the representations and warranties of the Seller contained herein are true and correct, substantially and in all material respects (except representations and warranties that are subject to a materiality qualification, which shall be true and correct in all respects), as contemplated in at the 2.7 AnnouncementClosing Time, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement same force and effect as if made on or prior and as at the Closing Time after giving effect to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as transactions contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Noteshereby; and
(xiii) the representations and warranties of the Seller respecting the Brookfield Matters arising by reason of the REIT’s delivery of the Supplemented Prospectus and any Supplementary Material are true and correct on and as at the Closing Time as if such documents had been dated the Closing Date and delivered to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably requestUnderwriters; and all such statements matters shall in fact be true in factand correct as at the Closing Time;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(gj) all actions required to be taken by or on behalf of the Corporation Seller and its Subsidiaries, as applicablethe REIT, including the passing of all requisite resolutions of the board of directors and/or shareholders of the Corporation and each Subsidiary Seller and/or unitholders of the REIT, and all requisite filings with governmental authorities, will shall have occurred at or prior to the Closing Time of Closing so as to:to validly authorize the execution and filing by the REIT of the Supplemental Prospectus and any Supplementary Material and for the Seller to sell the Purchased Units having the rights, privileges, restrictions and conditions contemplated by the Supplemental Prospectus;
(ik) execute the representations and deliver warranties of the Seller and the REIT contained in this Agreement are true and correct as at the Closing Time, with the same force and effect as if made as at the Closing Time after giving effect to the transactions contemplated herein, and the Seller and the REIT shall have complied, in all other documents contemplated under material respects, with all of the terms and conditions of this AgreementAgreement on its part to be complied with and satisfied at or prior to the Closing Time; and
(iil) createthe Underwriters shall have received such other certificates, issue opinions, agreements or materials in form and sell substance satisfactory to the Notes in accordance with Underwriters as the provisions of this Agreement and the Trust IndentureUnderwriters may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Brookfield Office Properties Canada)
Conditions of Closing. 9.1 The obligations obligation of the Dealers hereunder are Underwriters to offer for sale and, if applicable, purchase the Offered Securities at the Closing Time or the Additional Closing Time, as the case may be, will be subject to the satisfaction of the following conditionsfollowing:
(a) at the Time Corporation will cause its counsel to deliver to the Underwriters and its counsel a legal opinion dated and delivered on the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Underwriters and its counsel, each acting reasonably, and counsel to the Corporation may rely upon or arrange for separate deliveries of Closingopinions of local counsel where counsel to the Corporation deems such reliance or delivery proper as to the laws of jurisdictions other than Alberta (including the laws of Canada applicable therein) and as to matters of fact, on certificates of the Auditor, public officials, Computershare Trust Company of Canada, the Exchange, securities regulatory authorities and officers or directors of the Corporation, with respect to the following matters and, in rendering such opinions, counsel may make such assumptions and qualifications as are deemed by it, each acting reasonably, to be necessary to render such opinions:
(i) the Corporation is a corporation duly incorporated and validly existing and is in good standing under the laws of the jurisdiction in which it was incorporated;
(ii) the Corporation is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of any requirement of the Securities Laws in any of the Qualifying Jurisdictions;
(iii) the Corporation is authorized to issue an unlimited number of Common Shares;
(iv) the Corporation has all requisite corporate power and capacity to carry on its business as now conducted as described in the Prospectus and to own, lease and operate its property and assets and the Corporation has the requisite corporate power and capacity to execute and deliver this Agreement and to carry out the transactions contemplated hereby;
(v) the rights, privileges, restrictions and conditions attaching to the Purchased Shares, Over-Allotment Shares, Compensation Shares and Compensation Options are accurately summarized in all material respects in the Prospectuses;
(vi) all necessary corporate action having been taken by Corporation to authorize the execution and delivery of this Agreement and the performance by the Corporation of its obligations hereunder and to authorize the issuance, sale and delivery of the Purchased Shares, Over-Allotment Shares and Compensation Shares and the grant of the Over-Allotment Option and the Compensation Options;
(vii) the Purchased Shares have been validly created and issued as fully-paid and non- assessable Common Shares and upon full payment therefor and the issue thereof, the Over-Allotment Shares and the Compensation Shares will have been validly issued as fully paid and non-assessable Common Shares;
(viii) the Over-Allotment Shares and Compensation Shares have been duly created, allotted and reserved for issuance by the Corporation;
(ix) the form and terms of the definitive certificate representing the Common Shares have been approved by the directors of the Corporation and comply in all material respects with the Business Corporations Act (Alberta), the articles of the Corporation and the rules, policies and by-laws of the Exchange;
(x) if applicable, the delivery of the Purchased Shares and Over-Allotment Shares in electronic form does not conflict with the Business Corporations Act (Alberta) or the articles of the Corporation and the rules, policies and by-laws of the Exchange;
(xi) the Corporation has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and perform its obligations under this Agreement; (ii) to issue and sell the Purchased Shares, Over-Allotment Shares and the Compensation Shares; and (iii) to grant the Over-Allotment Option and the Compensation Options;
(xii) to such counsel’s knowledge, no order having the effect of ceasing or suspending the distribution of the Common Shares of the Corporation or the trading in Common Shares of the Corporation has been issued by any securities regulatory authority in the Qualifying Jurisdictions and no proceedings for that purpose have been instituted or are pending or contemplated;
(xiii) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xiv) each of this Agreement and the Compensation Option Certificate has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to the qualification that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(xv) the execution and delivery of this Agreement and the Compensation Option Certificate, the fulfillment of the terms thereof by the Corporation and the offering, issuance, sale and delivery of the Purchased Shares, Over-Allotment Shares and Compensation Shares, the grant of the Over-Allotment Option and the Compensation Options do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with any of the terms, conditions or provisions of the articles of the Corporation or any applicable corporate or securities laws of the Province of Alberta or federal laws of Canada applicable therein;
(xvi) Computershare Trust Company of Canada is the duly appointed registrar and transfer agent for the Common Shares of the Corporation;
(xvii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction to qualify the distribution of the Purchased Shares, the Over-Allotment Shares, the Compensation Options and the Compensation Shares in each of the Qualifying Jurisdictions through persons who are registered under Securities Laws and who have complied with the relevant provisions of such applicable laws;
(xviii) the issuance of the Compensation Shares upon due exercise of the Compensation Options in accordance with terms of the Compensation Option Certificate is exempt from prospectus requirement of applicable securities laws and no documents are required to be filed, no proceedings taken and no approvals, permits, consents, order or authorizations obtained pursuant to the Securities Laws to permit the issuance of the Compensation Shares to the Underwriters;
(xix) subject only to the Standard Listing Conditions, the Purchased Shares, Over- Allotment Shares and Compensation Shares have been conditionally listed or approved for listing on the Exchange;
(xx) as to the accuracy of the statements under the headings "Eligibility For Investment" in the Prospectuses; and
(xxi) as to all other legal matters, including compliance with Securities Laws of the Qualifying Jurisdictions, in any way connected to the issuance, sale and delivery of the Offered Securities as the Underwriters may reasonably request.
(b) if there are any U.S. purchasers in accordance with the terms of this Agreement, the Corporation will cause its U.S. counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, Underwriters a favourable legal opinion with respect to all such matters as dated and delivered on the Dealers may reasonably request, including, without limiting the generality of the foregoing: Closing Date to the existence and corporate power and capacity of effect that the Corporation; the creation, authorization, issue offer and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee Offered Securities does not require registration under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian U.S. Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing DateAct, in form and substance satisfactory to the DealersUnderwriters and its counsel, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.each acting reasonably;
(c) at the Time of Closing, the Corporation Underwriters will deliver to the Dealers a certificate have received certificates dated the Closing Date addressed to or the Dealers and their counselAdditional Closing Date, and as the case may be, signed by the chief executive officer and the chief financial officer on behalf of the Corporation or such other and without personal liability by those senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, certifying for in form and content satisfactory to the Underwriters, acting reasonably, with respect to:
(i) the constating documents of the Corporation;
(ii) the resolutions of the directors of the Corporation relevant to the allotment, issue and sale of the Offered Securities, the Compensation Options and Compensation Shares and the authorization of the other agreements and transactions contemplated by this Agreement, including the Preliminary Prospectus and the Prospectus; and
(iii) the incumbency signatures of signing officers of the Corporation;
(d) the Corporation will cause the Auditor to deliver to the Underwriters a comfort letter, dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the Underwriters and its counsel, each acting reasonably, addressed to the Underwriters, bringing forward to the Closing Date or the Additional Closing Date, as the case may be, the information contained in the comfort letter referred to in section 4.2(d); provided that such comfort letter shall be based on a review by the Auditor having a cut-off date not more than two Business Days prior to such Closing Date or Additional Closing Date, as the case may be;
(e) the Corporation will deliver to the Underwriters at the Closing Time or the Additional Closing Time, as the case may be, a certificate dated the Closing Date or the Additional Closing Date, as the case may be, addressed to the Underwriters and signed on behalf of the Corporation (and without personal liability) thatliability by its chief executive officer and its chief financial officer or other officers of the Corporation acceptable to the Underwriters, acting reasonably, with respect to the following matters:
(i) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Closing Time of Closingor the Additional Closing Time, as the case may be;
(ii) subsequent to the respective dates as at which information is given in the Prospectus, there has not been any adverse material change in the condition (financial or otherwise) or results of operations of the Corporation, other than as disclosed in the Prospectus or any Supplementary Material, as the case may be;
(iii) subsequent to the respective dates as at which information is given in the Prospectus, no transaction out of the ordinary course of business has been entered into by the Corporation or any Subsidiary of the Corporation, or has been approved by the directors, which results or could result in an adverse material change to the Corporation taken as a whole, other than as disclosed in the Prospectus or any Supplementary Material, as the case may be;
(iv) the representations and warranties of the Corporation contained herein in this Agreement are true and correct in all material respects (except those qualified by materiality, which shall be true and correct in all respects) as of at the Closing Time of or the Additional Closing Time, as the case may be, with the same force and effect as if made on and as at the Closing Time of or the Additional Closing after giving effect to Time, as the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;may be; and
(iiiv) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Offered Securities has been issued and no proceedings for such that purpose have been instituted or are pending or, to the best knowledge of those officers, contemplated or threatened by any regulatory authority; and the truth and correctness of all of those matters at the Closing Time or the Additional Closing Time, as the case may be, shall be closing conditions in favour of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonablyUnderwriters;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Closing Time of or the Additional Closing Time, as the case may be, so as to:to validly authorize the execution and filing of the Prospectus and any Supplementary Material and to create and issue the Offered Securities, Compensation Options and Compensation Shares having the attributes contemplated by the Prospectus;
(g) the Purchased Shares, Over-Allotment Shares and Compensation Shares will have been conditionally approved for listing on the Exchange prior to the Closing Date, subject only to the Standard Listing Conditions, and the Corporation shall provide the Underwriters with a copy of the written confirmation of such fact from the Exchange in customary form;
(h) the Corporation having delivered to the Underwriters a certificate of the Corporation's transfer agent certifying the number of Common Shares issued and outstanding on the date prior to the Closing Date; and
(i) execute the Underwriters will have received such other certificates, agreements, materials or documents in form and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell substance satisfactory to the Notes in accordance with Underwriters as the provisions of this Agreement and the Trust IndentureUnderwriters may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Units pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Units and the Over-Allotment Units, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇Underwriters receiving favourable legal opinions from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Units for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) at the Time of ClosingCorporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement, the Dealers Warrant Indenture and the Warrant Certificates, as applicable, (ii) to create, issue and sell the Offered Units, (iii) to issue the Broker Warrants, and (iv) to grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates, as applicable, and the performance of its obligations under the Agreement, the Warrant Indenture and the Broker Warrant Certificates and Agreement, the Warrant Indenture and the Broker Warrant Certificates have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Warrant Indenture and the Broker Warrant Certificates may be limited by applicable law;
(e) the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates and the fulfilment of the terms of this Agreement, the Warrant Indenture and the Broker Warrant Certificates by the Corporation and the issuance, sale and delivery of the Offered Units, the issuance and delivery of the Broker Warrants, the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Unit Shares have received been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Unit Warrants have been validly created and issued as warrants of the Corporation;
(i) the Over-Allotment Warrants have been validly created and reserved for issuance and will, upon exercise of the Over-Allotment Option and payment of the consideration therefor, be issued as warrants of the Corporation;
(j) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) the Broker Warrants have been validly created and issued as warrants of the Corporation;
(l) the Warrant Shares, Over-Allotment Warrant Shares, Broker Unit Shares and the Broker Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, Over-Allotment Warrants, Broker Warrants or Broker Unit Warrants, as applicable, in accordance with their respective terms, the Warrant Shares, Over-Allotment Warrant Shares, Broker Unit Shares and the Broker Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(m) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Units in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the Broker Warrants;
(n) that the issuance of the securities issuable upon exercise of the Warrants, Over-Allotment Warrants, the Broker Warrants and the Broker Unit Warrants are exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(o) subject to the qualifications and assumptions set out therein, the statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(p) subject only to the standard listing conditions, the Unit Shares, the Over-Allotment Shares, the Warrant Shares, the Over-Allotment Warrant Shares, Broker Unit Shares, the Broker Shares, the Warrants, the Over-Allotment Warrants and the Broker Unit Warrants have been conditionally listed or approved for listing on the CSE; and
(q) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably.
(2) the Underwriters receiving favourable legal opinions from counsel to each Subsidiary in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set out below:
(a) the Subsidiary having been incorporated and existing under applicable law of its jurisdiction of origin;
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(3) if any of the Offered Units are offered or sold in the United States or to, or for the account or benefit of, U.S. Persons, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer and resale of the Notes Offered Units under Rule 144A, provided, in each case, that such offer, resale and delivery of Offered Units in the United States or to, or for the account or benefit of, U.S. Persons, is made in compliance with this Agreement and the terms set out in Schedule “C” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of any Offered Units. In providing the extent governed by foregoing opinion, such counsel may rely upon the laws covenants, representation and warranties of Albertathe Corporation and the Underwriters set forth in this Agreement and Schedule “C” hereto, Ontario or Québec.and upon the covenants, representation and warranties of any purchasers in the United States;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Units, the issuance and delivery of the Broker Warrants, the grant of the Over-Allotment Option, and the authorization of this Agreement and the Warrant Indenture and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from Davidson and Company LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Units or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus
(A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation or any Subsidiary which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials Supplementary Material, as the case may be; and
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as they existed at to render any statement in the respective dates thereof)Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws;
(v8) the Underwriters receiving the Broker Warrant Certificates;
(9) none the Underwriters receiving the executed lock-up agreements, in favour of the documents filed with Canadian Securities Regulators forming Underwriters, from each director and officer of the Corporation’s Information Record contained Corporation and 1009368 BC Ltd. in a misrepresentation form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(10) the Underwriters receiving a certificate from Computershare Trust Company of Canada as to the number of Common Shares issued and outstanding as at the time end of business day on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii11) no order, ruling or determination having the Acquisition has not lapsed effect of ceasing or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended suspending trading in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating prohibiting the sale of the Notes; and
(x) as Offered Units or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to such other matters the knowledge of a factual nature as the Dealers and Corporation, threatened by any securities regulatory authority or the Dealers’ counsel may reasonably request; and such statements shall be true in factCSE;
(d12) the credit rating issued Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Unit Shares, Warrant Shares, Over-Allotment Shares, Over-Allotment Warrant Shares, Broker Unit Shares, Broker Shares, Warrants, Over-Allotment Warrants and Broker Unit Warrants on the CSE, subject only to satisfaction by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsof standard listing conditions;
(e13) the Supplemental Indentures shall have been executed Corporation complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i14) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii15) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agents to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use commercially reasonable efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agents:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, Fasken ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, Agents a favourable legal opinion addressed to the Agents dated and delivered on the Closing Date, in form and substance satisfactory to the Agents acting reasonably, with respect to all such matters the following matters:
(i) as to the Dealers may reasonably request, including, without limiting the generality incorporation and valid existence of the foregoing: Corporation and as to the existence and corporate capacity, power and capacity authority of the Corporation to carry out its obligations under this Agreement and to issue the Offered Securities;
(ii) that the Corporation is a reporting issuer in each of the Qualifying Jurisdictions that recognizes the concept of a reporting issuer and is not noted on a list maintained by the Canadian Securities Regulators as being in default under Securities Laws in the Qualifying Jurisdictions;
(iii) as to the authorized capital of the Corporation; ;
(iv) that the creationCorporation has all necessary corporate capacity and power under the Laws of Canada to carry on its business as presently carried on and to own, authorization, issue lease and sale operate its Assets and Properties;
(v) that all necessary corporate action has been taken by the Corporation to authorize the execution of the Notes; Prospectus Supplement and any Supplementary Material and the authorization filing thereof with the Canadian Securities Regulators;
(vi) that necessary corporate action has been taken by the Corporation to authorize the issuance of the Offered Securities and the Broker Warrants;
(vii) that the Debentures have been duly authorized by the Corporation and upon their issuance in accordance with the terms of this Agreement and the Trust Indenture will constitute legally binding agreements of the Corporation, enforceable in accordance with the terms of the Trust Indenture; ;
(viii) that upon payment of the applicable purchase price therefor or upon due conversion of the Debentures (including those issued in connection with the issue of Additional Securities upon the exercise of the Over-Allotment Option), the Debenture Shares will be duly and validly issued as fully paid and non-assessable shares of the Corporation;
(ix) that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has Warrants have been approved duly authorized by the Corporation and complies upon their issuance in accordance with the provisions terms of this Agreement and the Warrant Indenture, will constitute legally binding agreements of the Trust Corporation, enforceable in accordance with the terms of the Warrant Indenture; ;
(x) that upon payment of the exercise price upon due exercise of the Warrants (including those issued in connection with the issue of Additional Warrants upon the exercise of the Over-Allotment Option) in accordance with the terms of the Warrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non-assessable shares of the Corporation;
(xi) that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has Broker Warrants have been duly appointed authorized by the Corporation as and upon their issuance in accordance with the paying agent in respect terms of the Notes under Agency Agreement and the Trust Indenture; Broker Warrant Certificates will constitute legally binding agreements of the enforceability Corporation, enforceable in accordance with the terms of this Agreementthe Broker Warrant Certificates;
(xii) that upon payment of the exercise price upon due exercise of the Broker Warrants (including those issued in connection with the issue of Additional Securities upon the exercise of the Over-Allotment Option) in accordance with the terms of the Broker Warrant Certificates, the Trust Indenture Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable shares of the Notes; Corporation;
(xiii) that all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder and each of the Transaction Documents has been executed and delivered by the Corporation ofand constitute a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution may be limited by applicable law;
(xiv) that none of the execution and delivery of any of the Transaction Documents, the performance by the Corporation of its obligations under this Agreement and hereunder or thereunder nor the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Offered Securities to be issued and sold by the Corporation at the Closing Time will conflict with or result in any breach of the articles of incorporation or by-laws of the Corporation, any resolutions of the directors or shareholders of the Corporation or any applicable corporate Law or Securities Laws of the Qualifying Jurisdictions;
(xv) that all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions have been obtained by the Corporation to purchasers qualify the distribution to the public of the Offered Securities in each of the Qualifying Jurisdictions through investment dealers who are duly registered under applicable Securities Laws and who have complied with the relevant provisions of applicable Securities Laws;
(xvi) that the rights, privileges, restrictions and conditions attaching to the Offered Securities conform in all material respects to the descriptions thereof contained in the Offering JurisdictionsProspectus Supplement;
(xvii) that the statements set forth in the Prospectus Supplement under the caption “Eligibility for Investment” are accurate, subject to the limitations and qualifications set out therein;
(xviii) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under the Securities Laws in order to qualify the distribution of the Securities in each Qualifying Jurisdiction by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(xix) the issuance of the Underlying Shares by the Corporation in the Qualifying Jurisdictions as and when such Underlying Shares are issued in connection with the conversion of the Debentures, the due exercise of the Warrants and the due exercise of the Broker Warrants, respectively, each in accordance with the terms and conditions of this Agreementtheir respective terms, is, or will be is exempt from the prospectus requirements of Canadian the Securities Laws and no prospectus will be required, no or other document will be is required to be filed, no proceeding will be proceedings are required to be taken and no approvalapprovals, permitpermits, consent, order, consents or authorization authorizations of any regulatory authority will be the Canadian Securities Regulators of the Qualifying Jurisdiction are required to be obtained by the Corporation under Canadian the Securities Laws to issue permit such issuance of the Underlying Shares;
(xx) the first trade in each Qualifying Jurisdictions of the Underlying Shares acquired upon the due conversion of the Debentures, the due exercise of the Warrants or the due exercise of the Broker Warrants, respectively, each in accordance with their respective terms, will not be subject to the prospectus requirements of the Securities Laws and deliver no prospectus or other document is required to be filed, no proceedings are required to be taken and no approvals, permits, consents or authorizations of the Notes Canadian Securities Regulators of the Qualifying Jurisdictions are required to be obtained by the Corporation under the Securities Laws to permit such purchasers, other than first trade of the filing of Underlying Shares; provided that: (A) such first trade is not a Form “control distribution” (as defined in National Instrument 45-106F1 prescribed 102 – Resale of Securities) at the time of such first trade; (B) the Corporation is a reporting issuer (as defined under NI 45-106 within 10 days after applicable Securities Laws) at the date time of issue such first trade; and (C) such first trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution (as defined under applicable Securities Laws); and further provided that such first trade is by or through dealers who are duly registered under the Securities Laws who have complied with the relevant provisions of such laws and the terms and conditions of their registrations; and
(xxi) that (i) Odyssey Trust Company, at its principal office in Toronto, Ontario, has been appointed the transfer agent and registrar in respect of the Notes Common Shares; and (ii) Odyssey Trust Company, at its principal office in Calgary, Alberta, has been appointed
(A) the payment of any fees related theretoTrustee under the Trust Indenture and (B) the Warrant Agent under the Warrant Indenture. It is understood that In connection with such opinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them the Agents, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada the province in which they are qualified to practise and may rely, to the Provinces extent appropriate in the circumstances, as to matters of Ontariofact on certificates of officers of the Corporation and others;
(b) the Agents receiving at the Closing Time on the Closing Date, Québec, British Columbia and Alberta, (or alternatively make arrangements a legal opinion to have such opinions of local counsel directly be addressed to the Dealers)Agents, in form and substance acceptable to the Lead Agents, acting reasonably, from counsel to the Subsidiaries (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers), that: (i) each of the Corporation.Subsidiaries is a corporation existing under the laws of its jurisdiction of organization, and has all requisite corporate capacity, power and authority to carry on its business as now conducted and to own, lease and operate its Assets and Properties; and (ii) all of the issued and outstanding shares of capital of each of the Subsidiaries are registered in the name of the Corporation or another Subsidiary, of which 50% of the issued and outstanding shares are registered in the name of the Corporation or another Subsidiary;
(bc) at the Time of Closing, the Dealers Agents will have received a regulatory opinion from the Corporation’s regulatory counsel that the Corporation and the Subsidiaries are in compliance with applicable state cannabis laws addressed to the Agents, such opinion to be in form and substance, acceptable to the Agents and their legal counsel, Torys LLPacting reasonably;
(d) if any Offered Securities are sold in the United States, or to or for the account or benefit of, persons in the United States or U.S. Persons, the Agents receiving, at the Closing Time on the Closing Date, a legal opinion dated the Closing Date, to be addressed to the Agents, in form and substance acceptable to the Agents, acting reasonably, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special United States legal counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of the Corporation), to the effect that the offer and sale in the United States of the Offered Securities is not required to be registered under the U.S. Securities Act if made in accordance with Schedule “A” to this Agreement;
(e) the Agents will have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agents may agree, certifying for and on behalf of the Corporation and without personal liability, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles of incorporation and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Securities to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(f) the Agents will have received the “long form” comfort letter delivered pursuant to subsection 5(a)(iii) and the Corporation will cause the Corporation’s Auditors to deliver to the Agents a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the DealersAgents, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed the information contained in the comfort letters referred to in subsection 5(a)(iii) hereof;
(g) the Dealers and their counselAgents will have received a certificate, and dated as of the Closing Date, signed by the chief executive officer and the chief financial officer Chief Executive Officer or Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as the Agents may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (and without personal liability) , to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Prospectus Supplement and any Supplementary Material, that:
(i) the Corporation has complied in all respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein in this Agreement and any certificate of the Corporation delivered hereunder are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification, in all respects) as of at the Time of Closing Time, with the same force and effect as if made on and as at the Time of Closing Time, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyby this Agreement;
(iii) the Corporation has filed the Prospectus Supplement and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws of the Qualifying Jurisdictions or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus Supplement:
(A) there has been no material adverse changechange (actual, anticipated, contemplated, threatened, financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), business, affairs, operations, prospects, capital or prospects control of the Corporation and its Subsidiaries (taken as a whole), ; and (B) no transaction has been entered into by either the Corporation or any development involving a prospective of its Subsidiaries which is material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of to the Corporation and its Subsidiaries (taken on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Prospectus Supplement or the Disclosure Materials (Supplementary Material, as they existed at the respective dates thereof);case may be; and
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed with Canadian Securities Regulators forming Prospectus Supplement which fact or change is, or may be, of such a nature as to render any statement in the Corporation’s Information Record contained Prospectus Supplement misleading or untrue in any material respect or which would result in a misrepresentation as at in the time Prospectus Supplement or which would result in the relevant document was filed that has Prospectus Supplement not since been correctedcomplying with applicable Securities Laws;
(vih) the Acquisition has not been terminated all consents, approvals, permits, authorizations or amended in any material respect, no material provision has been waived filings as may be required to be made or obtained by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated under applicable Securities Laws in the 2.7 Announcement, Qualifying Jurisdictions and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. United States necessary for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” offer and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.sale
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Closing Time of Closingfavourable legal opinions from Goodmans LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public, certain corporate matters and as to other matters governed by the laws of jurisdictions in Canada other than Canada the provinces and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements territories in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below:
(a) the Corporation is a corporation validly amalgamated and existing under the Canada Business Corporations Act and has all requisite corporate power and capacity to own and lease its properties and assets as described in the Offering Documents;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms hereof by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) 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 Canadian Securities Laws to qualify the issuance, distribution and sale of the Offered Shares in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over-Allotment Option to the Underwriters;
(j) subject to the qualifications set out in the Prospectus under the heading “Eligibility for Investment”, the Offered Shares will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax free savings accounts;
(k) subject only to the standard listing conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(l) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in a form acceptable to counsel to the Co-Lead Underwriters, acting reasonably.
(2) the Underwriters receiving, at the Time of ClosingClosing Time, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that the offer and sale of Offered Shares to Substituted Purchasers in the United States in accordance with the U.S. Memoranda and this Agreement (including Schedule “B” hereto) will not be required to be registered under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriters and their counsel, with respect to such matters as acting reasonably;
(3) the Dealers may reasonably require relating Underwriters receiving at the Closing Time title opinions from legal counsel acceptable to the distribution Underwriters, regarding the right to or ownership of the Notes Material Properties in a form acceptable to the extent governed by Underwriters and their counsel, acting reasonably;
(4) the laws Underwriters receiving at the Closing Time favourable legal opinions from legal counsel to the Corporation acceptable to the Underwriters, regarding the Material Subsidiaries in a form acceptable to the Underwriters and their counsel, acting reasonably, to the effect set out below:
(a) the Material Subsidiary having been incorporated and existing under its jurisdiction of Alberta, Ontario or Québec.incorporation;
(b) the Material Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Offering Documents; and
(c) at the Time of Closing, the Corporation will deliver as to the Dealers a certificate authorized and issued share capital of the Material Subsidiary and to the ownership thereof;
(5) the Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Material Subsidiaries, each dated within one (1) Business Day prior to the Closing Date, or as close to the Closing Date as practicable in the relevant jurisdictions;
(7) the Underwriters receiving, at the Closing Time, a “bring down” auditors comfort letter dated the Closing Date from the auditors of the Corporation, Deloitte LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(2)(c) hereof;
(8) the Underwriters receiving from the Corporation at the Closing Time, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiia) no order, ruling or determination having the effect of suspending the distribution or ceasing the trading or suspending prohibiting the sale distribution of the Notes Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority
(ivb) since the respective dates of the Disclosure Materials, there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries on a consolidated basis, or new material fact, or change in any material fact (taken as a whole), from that disclosed which includes the disclosure of any previously undisclosed material fact) contained in the Corporation’s Information Record Final Prospectus, which fact or change is, or may be, of such a nature as to render any statement in the Disclosure Materials (as they existed at Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the respective dates thereof)Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws or which would require an amendment to the Final Prospectus;
(vc) none the representations and warranties of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record Corporation contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in this Agreement, and in any material respect, no material provision has been waived by certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and correct in all material respects as contemplated in of the 2.7 AnnouncementClosing Time as if such representations and warranties were made as at the Closing Time, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior after giving effect to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as transactions contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Noteshereby; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for Corporation has complied in all material respects with all the Notes shall be at least “Baa1” (stable), covenants and satisfied in all material respects all the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” terms and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each conditions of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required on its part to be taken by or on behalf of the Corporation complied with and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time.
(i9) execute the Underwriters having received, at the Closing Time, a certificate from TMX Equity Transfer Services as to the number of Common Shares issued and deliver outstanding as at the end of Business Day on the date prior to the Closing Date;
(10) at the Closing Time, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the distribution of the Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to the knowledge of the Corporation, threatened by any securities regulatory authority or the TSX or NYSE;
(11) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX and the NYSE (subject, in the case of the NYSE, to notice of issuance), subject only to satisfaction by the Corporation of standard listing conditions;
(12) the Corporation complying with all of its covenants and obligations under this Agreement and all other documents contemplated under this Agreementrequired to be satisfied at or prior to the Closing Time;
(13) the Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received at the Closing Time such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of ClosingClosing a legal opinion from Stikeman Elliott LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), with respect to the matters set forth below:
(a) the existence and corporate power of the Corporation to enter into and perform its obligations under this Agreement;
(b) the corporate power and capacity of the Corporation to carry on business and to own and lease its properties and assets;
(c) the existence of Oromin Explorations Ltd.;
(d) the corporate power and capacity of Oromin Explorations Ltd. to carry on business and to own and lease its properties and assets;
(e) the execution and delivery of and performance by the Corporation of this Agreement and that the execution and filing of the Preliminary Prospectus and the Final Prospectus being authorized by all necessary corporate action on the part of the Corporation;
(f) the qualification of the Corporation to carry on business as an extra-provincial corporation in each of the Qualifying Jurisdictions;
(g) that the execution and delivery of and performance by the Corporation of this Agreement does not constitute or result in a violation or breach of or a default under its articles of incorporation, as amended, or by-laws, any laws of general application in the Qualifying Jurisdictions or, to the knowledge of Stikeman Elliott LLP, any judgment, order or decree of any court, agency, tribunal, arbitrator or other authority to which the Corporation is subject;
(h) that no authorization, consent or approval of, or filing, registration, qualification or recording with, any Governmental Authority having jurisdiction in the Qualifying Jurisdictions is required by the Corporation in connection with the execution and delivery of or performance by the Corporation of this Agreement;
(i) that this Agreement has been duly executed and delivered by the Corporation as a matter of corporate law in compliance with the laws of its jurisdiction of incorporation, namely Canada, and with the provisions of its certificate and articles of incorporation, as amended, and its by-laws;
(j) that this Agreement constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with its terms under the laws of Ontario;
(k) the authorized capital of the Corporation;
(l) the authorized capital of Oromin Explorations Ltd.;
(m) the issuance of the Offered Shares having been authorized by all necessary corporate action on the part of the Corporation;
(n) subject to receipt of payment in full for them, that the Offered Shares will be validly issued as fully paid and non-assessable;
(o) all necessary documents having been filed, all requisite proceedings having been taken and all necessary approvals, permits, consents and authorizations having been obtained by the Corporation under the applicable Canadian securities laws of the Qualifying Jurisdictions to qualify the distribution of the Offered Shares and the Over-Allotment Option, and if the Over-Allotment Option is exercised in accordance with its terms, the Over-Allotment Shares: (i) to the public in the Qualifying Jurisdictions through registrants registered under the applicable Canadian securities laws of the Qualifying Jurisdictions who have complied with the relevant provisions of such applicable legislation; and (ii) to such registrants purchasing as principals, provided that, in both cases, the Preliminary Prospectus and the Final Prospectus are delivered to purchasers and filed with the regulators in each of the Qualifying Jurisdictions in accordance with applicable Canadian securities laws and the applicable fees are paid within the prescribed time periods;
(p) the accuracy of the statements under the heading of the Prospectus entitled “Eligibility for Investment”, subject to the assumptions, qualifications, limitations and restrictions set out therein;
(q) subject to the Standard Listing Conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(r) the reporting issuer status of the Corporation in the Qualifying Jurisdictions; all subject to customary assumptions and qualifications and in a form acceptable to the Underwriters and their counsel, acting reasonably.
(2) the Underwriters receiving at the Time of Closing, Closing the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that registration of the Offered Shares offered and sold in the United States in accordance with this Agreement (including Schedule “B” hereto) will not be required under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriters and their counsel, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.acting reasonably;
(c3) the Underwriters receiving at the Time of Closing, Closing the Corporation will deliver to the Dealers a certificate favourable legal opinion dated the Closing Date addressed from Hardy Bowen, Australian counsel for the Corporation, to the Dealers effect that (a) no prospectus is required under Australian Securities Laws in Australia in connection with the Offered Shares (or CDIs in respect of those Offered Shares) offered and sold in Australia in accordance with this Agreement; and (b) as to such other matters as the Underwriters may reasonably require in relation to the Offering in Australia, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably;
(4) the Underwriters receiving certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance for the Corporation and Oromin Explorations Ltd., each dated within one (1) Business Day prior to the Closing Date;
(6) the Underwriters receiving at the Time of Closing a “bring down” comfort letter dated the Closing Date from each of the current and prior auditors of the Corporation, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letters referred to in Section 4(1)(c);
(7) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or the Common Shares has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby, except for representations ;
(8) the Underwriters receiving at the Time of Closing a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific date other than business on the Business Day prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii9) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Shares (or CDIs in respect of the Offered Shares) or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority, the TSX or the ASX;
(iv10) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materials, there has been no material adverse change, financial approval (or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional approval) of the Corporation listing and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital posting for trading of the Offered Shares on the TSX, subject only to satisfaction by the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)of Standard Listing Conditions;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi11) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Closing;
(i12) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii13) createthe Underwriters having received at the Time of Closing such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Time of this Agreement Closing that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver legal counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local legal counsel acceptable to them legal counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions, limitations and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and a limitation that no opinion is expressed as to the enforceability of the rights of indemnity, contribution or waiver of contribution set forth in this Agreement;
(e) the execution and delivery of this Agreement and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles or articles of the Corporation, any resolutions of the shareholders or directors of the Corporation, or the British Columbia Business Corporations Act or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions;
(g) upon payment therefore and issuance in accordance with the terms of this Agreement, the Offered Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) 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 Canadian Securities Laws to permit the Offered Shares to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over-Allotment Option to the Underwriters;
(j) the Offered Shares will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans and tax free savings accounts;
(k) subject only to the standard listing conditions and the requirements set forth in the conditional approval letters of the TSX and NASDAQ, the Offered Shares have been conditionally listed or approved for listing on the TSX and NASDAQ; and
(l) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing, in a form acceptable to the Co-Lead Underwriters and their legal counsel, acting reasonably.
(2) the Underwriters receiving, at the Time of Closing, favourable legal opinions from legal counsel to the Dealers will have received from Corporation acceptable to the Co-Lead Underwriters, regarding certain material Subsidiaries in a form acceptable to the Co-Lead Underwriters and their legal counsel, Torys LLPacting reasonably, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect effect set out below:
(a) the Subsidiaries having been incorporated and existing under their jurisdiction of incorporation;
(b) the Subsidiaries having the corporate power and capacity to such matters own and lease their properties and assets and to conduct their businesses as described in the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Prospectus; and
(c) at the Time of Closing, the Corporation will deliver as to the Dealers a certificate authorized and issued share capital of the Subsidiaries, all of which are owned by the Corporation;
(3) the Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersCo-Lead Underwriters, acting reasonably, in form and content satisfactory to the Co-Lead Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one (1) Business Day prior to the Closing Date;
(5) the Underwriters receiving, at the Time of Closing, a “bring down” comfort letter dated the Closing Date from the auditors of the Corporation, Deloitte LLP, in form and substance satisfactory to the Co-Lead Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(c) hereof;
(6) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Co-Lead Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Prospectus or which would result in the Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby;
(7) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(8) the Underwriters receiving, except for representations at the Time of Closing, a certificate from Olympia Trust Company as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific business day on the date other than prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii9) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Shares or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSX or NASDAQ;
(iv10) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materialsapproval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX and NASDAQ, there has been no material adverse change, financial or otherwise, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional listing approval letters of the Corporation TSX and its Subsidiaries (taken NASDAQ, as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)applicable;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi11) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Closing;
(i12) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii13) createthe Underwriters having received at the Time of Closing such further certificates, issue opinions of legal counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions Underwriters or their legal counsel shall request any such certificate or document within a reasonable period prior to the Time of this Agreement Closing that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Merus Labs International Inc.)
Conditions of Closing. The obligations of the Dealers Agents hereunder are subject and the Purchasers to complete the satisfaction purchase of the Special Warrants contemplated hereby shall be conditional upon the fulfillment at or before the Time of Closing (as defined below) of the following conditions:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, having obtained all requisite regulatory approvals required to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved be obtained by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under Offering on terms mutually acceptable to the Trust Indenture; Corporation and the enforceability Agent acting reasonably;
(b) the Corporation and the Agents having complied fully with all relevant statutory and regulatory requirements required to be complied with prior to the Time of Closing (including without limitation those of the TSE in connection with the Offering);
(c) the Corporation having received the approval of the TSE to proceed with the Offering, and to list the Shares issuable upon conversion of the Debentures for trading on the TSE, subject to the usual conditions;
(d) the Corporation having taken all necessary corporate action to authorize and approve this Agreement, the Trust Subscription Agreements, the Special Warrant Indenture, the Debenture Indenture and the Notesissuance of the Special Warrants, the Subject Securities and all other matters relating thereto;
(e) the Agents having received at Closing a favorable legal opinion of the Corporation' s United States counsel and of McCarthy, Tetrault, Canadian counsel to the Corporation, addressed to the Agents and to the Purchasers, acceptable in all reasonable respects to counsel to the Agents, to the effect, in the case of the Corporation's United States counsel, that no registration of the Special Warrants, Debentures or Shares is required under the United States Securities Act of 1933, as amended, and, in the case of the Corporation's Canadian counsel in the form set forth in Schedule "D" attached hereto, and with respect to such other matters as the Agents may reasonably request in connection with the Offering.
(f) the Agents having received at Closing a favorable legal opinion of USMX's United States counsel, addressed to the Agents and to the Purchasers, acceptable to counsel to the Agents acting reasonably, with respect to USMX and to its subsidiaries USMX of Utah, Inc. and Southern Gold Resources Ltd. (the "USMX Subsidiaries") and such other matters as the Agents may reasonably request in connection with the Offering and the Merger, substantially to the effect that:
(i) USMX has been duly incorporated and is existing under the laws o Delaware;
(ii) each USMX Subsidiary has been duly incorporated and is existing under the laws of its jurisdiction of incorporation;
(iii) USMX and each USMX Subsidiary have all necessary corporate capacity to own, lease and operate their respective properties and assets and to conduct their respective businesses at and in the places where such properties and assets are now owned, leased or operated or such businesses are now conducted;
(iv) the USMX Subsidiary has full and undisputed title to all of the material mineral resource properties over which it is conducting or will conduct surveying, exploration, testing or mining activities;
(v) USMX is shown on the share register of each USMX Subsidiary as the registered holder of all the issued and outstanding shares in the capital of the USMX Subsidiary (with any modification necessary to reflect the actual holdings of the Corporation);
(vi) the authorized capital of USMX consists of 65,000,000 shares, divided into 45,000,000 Shares and 20,000 preferred shares of which, as at the Closing Date, 16,184,182 Shares are issued and outstanding (relying solely on a certificate of the Trustee);
(vii) the Merger Agreement and all documents or agreements relating thereto (the "Agreements") have been duly authorized by all necessary corporate action on the part of USMX, and will upon due execution and delivery by and on behalf of USMX constitute legal, valid and binding obligations of USMX enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally, except that specific performance and injunction are equitable remedies which may only be granted in the discretion of a court of competent jurisdiction and except as rights to indemnity, contribution and waiver of contribution may be limited under applicable law; that and
(viii) the execution and delivery by of the Corporation ofAgreements, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance fulfillment of the Notesterms thereof, do does not and will not conflict with and does not and will not result in a breach of of, any of (A) the terms, conditions or provisions of the constating documents of USMX.
(g) the Agents having received at Closing favorable legal opinions of the Corporation's local counsel with respect to each subsidiary of the Corporation holding an interest in a material mining property of the Corporation (each, a "Subsidiary") addressed to the Agents, and each of the Purchasers, acceptable to counsel to the Agents, to the effect that:
(i) the Subsidiary is a corporation validly existing under the laws of its jurisdiction of incorporation and is qualified to carry on business and own its assets under the laws of each jurisdiction in which it carries on business and owns its assets;
(ii) the Subsidiary has all requisite corporate capacity, power and authority to carry on its business as is now conducted by it and to own its assets;
(iii) the registered holder of 100% of the issued and outstanding shares in the capital of the Subsidiary is the Corporation, or adjusted to reflect actual ownership, as necessary; and
(Biv) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions Subsidiary has full and undisputed title to all of the CBCA mineral resource properties over which it is conducting or will conduct surveying, exploration, testing or mining activities. In giving the opinions contemplated in (e), (f) and the Business Corporations Act (Ontariog); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of , above, counsel to the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order and to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation USMX shall be entitled to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstanceswhere appropriate, as to matters of fact, on upon the representations and warranties of Purchasers contained in the executed Subscription Agreements, a certificate of fact of the Corporation or USMX, where applicable, signed by officers in a position to have knowledge of such facts and their accuracy, a certificate from the Corporation's registrar and transfer agent with respect to the number of Shares issued and outstanding and certificates of an officer of the Corporationsuch public officials and other persons as are necessary or desirable.
(bh) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form Agents and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution each of the Notes to the extent governed by the laws Purchasers having received a certificate of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer Chief Executive Officer of the Corporation and the chief financial officer Chief Financial Officer of the Corporation or by such other executive officers of the Corporation as may be acceptable to the Dealers, acting reasonably, Agents certifying for and on behalf of as to certain matters reasonably requested by the Corporation (without personal liability) Agents including certification that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior up to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated herebysince September 30, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials1996, there has been no material adverse changechange (actual, proposed or prospective, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (subsidiaries taken as a whole), from that except a disclosed in the Corporation’s Information Record Public Record;
(iii) no order, ruling or determination having the Disclosure Materials effect of ceasing or suspending trading in any securities of the Corporation (including the Special Warrants and the Subject Securities) has been issued and no proceedings for such purposes, or, to the knowledge of such officers, are pending, contemplated or threatened;
(iv) the Corporation is a "reporting issuer" not in default under the securities laws of each of the provinces in which it is a reporting issuer and no material change relating to the Corporation has occurred with respect to which the requisite material change statement has not been filed, unless the Offering contemplated hereby constitutes a material change, and currently no disclosure of any material change has been made on a confidential basis; and
(v) the execution and delivery of this Agreement, the Subscription Agreements and the Special Warrant Indenture, the Debenture Indenture, and the performance of the transactions contemplated thereby do not and will not result in a breach of, and do not create a state of facts which, after notice, or lapse of time or both, will result in a breach of, and do not and will not conflict with, any of the terms, conditions or provisions of the constating documents or by-laws of the Corporation or any trust indenture, agreement, or instrument to which the Corporation is contractually bound on the Closing Date (as they existed defined below);
(i) the Agents and each of the Purchasers having received a certificate of USMX dated the Closing Date signed by the Chief Executive Officer of USMX and the Chief Financial Officer of USMX or by such other executive officers acceptable to the Agents certifying as to certain matters reasonably requested by the Agents including certification that:
(i) USMX has complied with all covenants and satisfied all terms and conditions of the Merger Agreement on its part to be complied with and satisfied up to the Time of Closing (as defined below) to the extent that such covenants, terms and conditions could be satisfied as at the respective dates thereof)Closing Date using the best efforts of USMX; and
(ii) all of the representations and warranties of USMX contained in the Merger Agreement are true and correct as of the Closing Date with the same force and effect as if made at and as of the Merger Date, after giving effect to the transactions contemplated thereby;
(iii) since November 1, 1996, there has been no material adverse change (actual, proposed or prospective, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the USMX and its subsidiaries taken as a whole;
(iv) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of USMX has been issued and no proceedings for such purposes are pending, or, to the knowledge of such officers, pending, contemplated or threatened;
(v) none USMX is a "reporting issuer" not in default under the securities laws of each of the documents filed jurisdictions in which it is a reporting issuer and no material change relating to USMX has occurred with Canadian Securities Regulators forming respect to which the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that requisite material change statement or its equivalent has not since been corrected;filed unless the Offering contemplated hereby or the Merger constitutes a material change and currently no disclosure of any material change has been made on a confidential basis; and
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by execution and delivery of the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 AnnouncementMerger Agreement, and the Corporation has no reason to believe that performance of the Acquisition transactions contemplated thereby will not be completed result in accordance with a breach of, and will not create a state of facts which, after notice, or lapse of time or both, will result in a breach of, and do not and will not conflict with, any of the 2.7 Announcement terms, conditions or provisions of the constating documents or by-laws of USMX or any trust indenture, agreement, or instrument to which USMX is contractually bound on or prior to the Outside Closing Date;
(viij) the Acquisition has not lapsed or been withdrawnCorporation shall have delivered to the Agents a certificate of the Warrant Agent as registrar and transfer agent which certifies the issued and outstanding Shares s at the Closing Date (as hereinafter defined);
(viiik) the Separation Agreement has not been terminated or amended Special Warrant Indenture and the Debenture Indenture, each in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, form acceptable to the Corporation’s KnowledgeAgents, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to Warrant Agent for the Dealers, acting reasonablyholders of the Special Warrants;
(fl) evidence satisfactory the Corporation shall have delivered opinions of local counsel for the Corporation pertaining to the Dealers material mineral properties owned or held by the Corporation directly or indirectly and with respect to such additional properties of the Company as the Agents may reasonably request;
(m) the Corporation shall have delivered opinions of local counsel for USMX pertaining to the material mineral properties owned or held by USMX directly or indirectly and with respect to such additional properties of the Company as the Agents may reasonably request
(n) the Agents being satisfied as to the reasonable likelihood that the Corporation’s board of directors has authorized and approved this Agreement and Shareholder Approval shall be obtained prior to the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretoShareholder Qualification Deadline; and
(go) all actions required to the Agents shall be taken by or on behalf satisfied in their sole discretion with such due diligence of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at Agent or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenturetheir representatives deem appropriate.
Appears in 1 contract
Sources: Special Warrant Offering Agreement (Dakota Mining Corp)
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Units pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Initial Units and the Over- Allotment Units, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers Corporation (who may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on provide the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Units for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is validly existing under the laws of the Province of Ontario;
(b) the Corporation has the corporate power and corporate capacity under the constating documents of the Corporation to (i) carry on its business and activities and to own, lease and operate its properties and assets, as described in the Prospectus, (ii) execute and deliver the Agreement, the Warrant Indenture and the Warrant certificates, as applicable, and the Compensation Warrant Certificates and perform its obligations hereunder and thereunder, (iii) create, offer, issue and sell the Offered Units, (iv) create and issue the Compensation Warrants, and (v) grant the Over-Allotment Option to the Underwriters;
(c) as to the authorized share capital of the Corporation and that the Prospectus describes, in all material respects, the attributes of the Common Shares of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Agreement, the Warrant Indenture and the Compensation Warrant Certificates and the performance by the Corporation of its obligations under this Agreement, the Warrant Indenture and the Compensation Warrant Certificates, and this Agreement, the Warrant Indenture and the Compensation Warrant Certificates have been duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Warrant Indenture and the Compensation Warrant Certificates may be limited by applicable Law;
(e) the execution and delivery of the Agreement, the Warrant Indenture and the Compensation Warrant Certificates and the performance by the Corporation of its obligations hereunder and thereunder, including the issuance, sale and delivery of the Securities, as applicable, and the grant of the Over-Allotment Option in accordance with the Agreement, the Warrant Indenture and the Compensation Warrant Certificates, do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under (i) constating documents of the Corporation, or (ii) any applicable Securities Laws having force in the Province of Ontario;
(f) all necessary corporate action has been taken by the Corporation to authorize (i) the signing by the Corporation of the Preliminary Prospectus, Amended Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions and (ii) the application for the listing of the Offered Units on the Exchange;
(g) the Unit Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Unit Warrants and Compensation Warrants have been validly created and issued as warrants of the Corporation;
(i) the Over-Allotment Warrants have been validly authorized, allotted and reserved for issuance and will, upon due exercise of the Over-Allotment Option and payment of the consideration thereof, be issued as warrants of the Corporation;
(j) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon due exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) the Warrant Shares, the Over-Allotment Warrant Shares and the Compensation Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, the Over-Allotment Warrants and the Compensation Warrants, as applicable, and payment of the consideration therefor, in accordance with their respective terms, the Warrant Shares, the Over-Allotment Warrant Shares and the Compensation Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(l) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under the Securities Laws in order to qualify the distribution of the Offered Units in the Qualifying Jurisdictions by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(m) the issuance of the Warrant Shares issuable upon due exercise of the Warrants and the Over-Allotment Warrants and the issuance of Compensation Shares upon due exercise of the Compensation Warrants will be exempt from, or will not be subject to, the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(n) the Corporation (i) is a “reporting issuer” in each of the provinces of British Columbia, Ontario and Alberta, and (ii) is not on the list of defaulting reporting issuers published by the Securities Commissions;
(o) the Unit Shares, the Warrant Shares and the Compensation Shares have been conditionally approved for listing on the Exchange, subject to the Corporation fulfilling all of the requirements of the Exchange and the Standard Listing Conditions including those set forth in the Exchange letter;
(p) TSX Trust Company has been duly appointed as registrar and transfer agent of the Common Shares of the Corporation and as of the Closing Time, TSX Trust Company (or such other party as the Corporation and the Co-Lead Underwriters may mutually agree upon as Warrant Agent) will be duly appointed as warrant agent under the Warrant Indenture; and
(q) subject to the limitations, qualifications and assumptions set out therein, the statements set forth in the Prospectus under the heading “Eligibility for Investment” are accurate summaries of the matters discussed therein; in form and substance acceptable to the Underwriters and its counsel, acting reasonably.
(2) the Underwriters shall have received at the Closing Time of Closing, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing Dateopinions, in form and substance satisfactory to counsel to the DealersUnderwriters, acting reasonably, dated as of the Closing Date, from counsel to the Corporation in the jurisdiction of existence of each of the Subsidiaries, which counsel in turn may rely, as to matters of fact, on certificates of public officials and officers of each Subsidiary, as appropriate, with respect to the following matters: (a) such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by Subsidiary is a corporation existing under the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counseljurisdiction in which it exists, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable has all requisite corporate power to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture carry on its part business as now conducted and to be complied with own, lease and satisfied at or prior to the Time of Closing;
(ii) the representations operate its property and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters under this Agreement to purchase the Offered Securities at the Closing Time and at any Option Closing Time (in the event that the Over-Allotment Option is exercised by the Lead Underwriter) shall be subject to the satisfaction of each of the following conditionsconditions (it being understood that the Underwriters may waive in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to their rights in respect of any other of the following terms and conditions or any other or subsequent breach or non-compliance of the Corporation, provided that to be binding on the Underwriters any such waiver or extension must be in writing and signed by each of them):
(1) the Underwriters receiving favourable legal opinions from ▇▇▇▇ & Berlis LLP, counsel to the Corporation (who may provide the opinions of local counsel acceptable to counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation existing under the OBCA and has not been dissolved under the OBCA;
(b) the Corporation has the corporate power and corporate capacity under the OBCA and the constating documents of the Corporation to (i) carry on its Business and activities and to own, lease and operate its properties and assets, as described in the Prospectus, (ii) execute and deliver the Transaction Documents and Offering Documents, as applicable, and perform its obligations hereunder and thereunder, (iii) create, offer, issue and sell the Offered Securities, (iv) create, offer, issue and deliver the Compensation Securities, and (v) grant the Over-Allotment Option to the Underwriters; 40
(c) as to the authorized share capital of the Corporation and that the Prospectus describes, in all material respects, the attributes of the Common Shares, Warrants and preferred shares of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents, and the performance by the Corporation of its obligations under the Transaction Documents and the Transaction Documents have been duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation, enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement and the Warrant Indenture may be limited by Applicable Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Preliminary Prospectus, the Final Prospectus, the U.S. Memorandum and any Supplementary Material and the filing of such documents, as applicable, under Canadian Securities Laws;
(f) the execution and delivery of the Transaction Documents and the performance by the Corporation of its obligations thereunder, including the issuance, sale and delivery of the Offered Securities, the issuance and delivery of the Broker Warrants and the grant of the Over-Allotment Option in accordance with the terms of the Transaction Documents, do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under (i) constating documents of the Corporation, (ii) resolutions of the directors or shareholders of the Corporation, or (iii) the OBCA;
(g) the Unit Shares have been validly issued as fully paid and non-assessable Common Shares;
(h) the Unit Warrants have been validly created and issued as warrants of the Corporation;
(i) the Broker Unit Warrants have been authorized and allotted for issuance;
(j) the Broker Warrants have been validly created and issued as warrants of the Corporation;
(k) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares and Over-Allotment Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Corporation and, upon the exercise of the Over-Allotment Option, including receipt by the Corporation of 41 payment in full therefor, the Over-Allotment Shares and Over-Allotment Warrants will be duly and validly created, authorized, issued and outstanding and the Over- Allotment Shares will be fully paid and non-assessable shares;
(l) the Warrant Shares, the Over-Allotment Warrant Shares, the Broker Shares and Broker Unit Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, the Over-Allotment Warrants, Broker Warrants and Broker Unit Warrants, as applicable, in accordance with their respective terms, the Warrant Shares, the Over-Allotment Warrant Shares, the Broker Shares and the Broker Unit Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(m) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under Applicable Securities Laws in order to qualify the distribution of the Offered Securities in the Qualifying Jurisdictions by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(n) the issuance of the Warrant Shares and Over-Allotment Warrant Shares issuable upon exercise of the Warrants and the Over-Allotment Warrants, as applicable, will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(o) the issuance of the Broker Shares and Broker Unit Warrants issuable upon exercise of the Broker Warrants and the Broker Unit Shares issuable upon the exercise of the Broker Unit Warrants will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(p) the first trade in, or resale of, the Warrant Shares, the Over-Allotment Warrant Shares, the Broker Shares and the Broker Unit Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 – Resale of Securities);
(q) the Corporation is a "reporting issuer" under Canadian Securities Laws in each of the Qualifying Jurisdictions and it is not listed as in default of applicable Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list; 42
(r) the Unit Shares, the Warrant Shares, the Over-Allotment Shares, the Over- Allotment Warrant Shares, the Broker Shares and the Broker Unit Shares have been approved for listing on the Exchange, subject to the Corporation fulfilling all of the requirements of the Exchange, including those set forth in any conditional approval letter of the Exchange;
(s) Odyssey Trust Company has been duly appointed as registrar and transfer agent of the Common Shares and as warrant agent under the Warrant Indenture;
(t) subject to the limitations, qualifications and assumptions set out therein, the statements set forth in the Prospectus under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations", insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(u) the attributes of the Offered Securities and the Compensation Securities conform in all material respects with the description thereof contained in the Final Prospectus; and
(v) the form of Broker Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation, in form and substance acceptable to the Underwriters and their counsel, acting reasonably;
(2) the Underwriters receiving legal opinions from counsel to each Subsidiary (who may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials related to each Subsidiary), in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) such Subsidiaries having been incorporated and existing under the Applicable Laws of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and assets and to conduct their Business as currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and having all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective Business as currently conducted;
(3) if any of the Offered Securities are offered or sold in the United States or to, or for the account or benefit of, U.S. Persons, the Underwriters shall have received at the Closing Time of Closing, the Corporation will cause its counsel, Blake, ▇a customary and favourable legal opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver special United States counsel to the Dealers Corporation, dated the Closing Date in form and their counselsubstance reasonably satisfactory to the Underwriters to the effect that no registration is required under the U.S. Securities Act in connection with the offer, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality sale and resale of the foregoing: to the existence Offered Securities, provided, in each case, that such offer, sale and corporate power resale and capacity delivery of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof Offered Securities in the Term Sheets; that United States or to, or for the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation account or benefit of, and the performance by the Corporation of its obligations under U.S. Persons is made in compliance with this Agreement and the Trust Indenture, including the issuance of the Notes, do not terms set out in Schedule "B" hereto and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; provided further that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It it is understood that no opinion is expressed as to any subsequent resale of any Offered Securities. In providing the foregoing opinion, such counsel may rely on upon the opinions covenants, representation and warranties of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada Corporation and the Provinces Underwriters set forth in this Agreement and Schedule "B" hereto, and upon the covenants, representation and warranties of Ontario, Québec, British Columbia and Alberta, any purchasers in the United States;
(or alternatively make arrangements to have such opinions of local counsel directly 4) the Underwriters having received a legal opinion addressed to the Dealers), Underwriters and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, acting reasonably, dated as of the Closing Date, from counsel to the Corporation in Jamaica with respect to the applicable regulatory framework in Jamaica regarding the importation, sale and manufacture of Drug Products, including clinical trials related to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Drug Products and nutraceutical based medicines;
(c5) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option, the issuance and delivery of the Compensation Securities and the authorization of this Agreement and the Warrant Indenture and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Laws, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(7) the Underwriters receiving an auditor's "bring down" comfort letter dated the Closing Date from the Corporation's Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(8) the Underwriters shall have received a certificate from the Transfer Agent as to the number of Common Shares issued and outstanding as at a date no more than two Business Days prior to the Closing Date; 44
(9) the Underwriters receiving an auditor's "bring down" comfort letter dated the Closing Date from the Former Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(e) hereof;
(10) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation (including the Common Shares and Warrants) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus
(A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation or any Subsidiary which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respectSupplementary Material, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel case may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsbe;
(e) there has been no change in any material fact (which includes the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.d
Appears in 1 contract
Sources: Underwriting Agreement (Cybin Inc.)
Conditions of Closing. The obligations obligation of the Dealers Agents hereunder are subject to and arrange for the satisfaction purchase of the Offered Units at the Closing Time shall be conditional upon the fulfilment at or before the Closing Time of the following conditions:
(a1) at the Time of ClosingAgents receiving favourable legal opinions from Gowling WLG (Canada) LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporationcircumstances, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the arrange for separate opinions of local counsel acceptable to them counsel to the Agents, acting reasonably, as to the qualification of the Offered Units for sale to the public in Canada and as to other matters governed by the laws of jurisdictions other than in Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have each such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date), in form and substance satisfactory acceptable to the DealersAgents and its counsel, with respect to such matters as the Dealers may reasonably require relating acting reasonably, substantially to the distribution effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation existing under the OBCA;
(b) the authorized and issued capital of the Notes Corporation, prior to the extent governed by issue of the laws of Alberta, Ontario or Québec.Offered Units;
(c) at the Time of Closing, the Corporation will deliver has the corporate power and capacity to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants carry on business and satisfied all the terms to own, lease and conditions of this Agreement operate its properties and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
assets, (ii) execute, deliver and perform its obligations under the representations and warranties of the Corporation contained herein are true and correct in all material respects Transaction Documents, as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated herebyapplicable, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no orderissue and sell the Offered Units (including the Unit Shares and Warrants comprising the Offered Units), ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since issue the respective dates Warrant Shares upon due exercise of the Disclosure MaterialsWarrants, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none create and issue the Compensation Options and to issue and sell the Compensation Shares and Compensation Warrants upon due exercise of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
Compensation Options, and (vi) issue the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms Compensation Warrant Shares upon due exercise of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in factCompensation Warrants;
(d) the credit rating issued all necessary corporate action has been taken by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall to (i) execute, deliver to and perform its obligations under the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its SubsidiariesTransaction Documents, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with Offered Units (including the provisions of this Agreement Unit Shares and Warrants comprising the Trust Indenture.Offered Units),
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations of Underwriters' obligation to purchase the Dealers hereunder are Purchased Shares pursuant to this agreement will be subject to the satisfaction each of the following conditions:
(a) conditions being satisfied at the Time of Closing, :
11.1. the Corporation Underwriters will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to receive at the Dealers and their Time of Closing a favourable legal opinion dated the Closing Date from the Company's counsel, Torys LLP, a favourable legal opinion in form and substance acceptable to the Underwriters' counsel, acting reasonably, with respect to all the items listed below. In providing such opinions counsel may, where appropriate in the circumstances, rely as to matters as the Dealers may reasonably request, including, without limiting the generality of fact on certificates of the foregoing: Company's officers and/or directors and certificates of governmental agencies and may rely on the opinions of local counsel acceptable to the Underwriters' counsel acting reasonably as to matters governed by laws of the Qualifying Jurisdictions, other than Ontario. Such opinions may contain customary qualifications and assumptions:
11.1.1. the existence of the Company under the laws of its jurisdiction of continuance and corporate the power and capacity of the Corporation; Company to carry on its business and lease or own its property and assets as described in the creation, authorization, issue and sale Prospectus;
11.1.2. the authorized share capital of the Notes; the authorization of the Trust Indenture; that Company;
11.1.3. the attributes of the Notes are Shares being consistent in all material respects with the description thereof in the Term SheetsProspectus;
11.1.4. the corporate power and capacity of the Company to enter into and perform this agreement and the authorization, execution, delivery and enforceability of this agreement by and against the Company, except as rights to indemnity and waiver of contribution thereunder may be limited by applicable law, and subject to bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors rights and to the award of specific performance being in the discretion of a court of competent jurisdiction and other typical qualifications;
11.1.5. the Qualified Shares sold at the Time of Closing being duly and validly authorized and issued and being outstanding as fully paid and non-assessable shares of the Company;
11.1.6. there being no consent, approval, authorization, order, registration or qualification of or with any court or government agency or body in Canada that is required for the consummation by the Company of the transactions contemplated by this agreement, except as have been obtained;
11.1.7. that all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations, under the Securities laws of the Qualifying Jurisdictions have been obtained by the Corporation and all other legal requirements have been fulfilled to qualify the Purchased Shares and Additional Shares for sale to the public in each of such Qualifying Jurisdictions through persons who are registered under the applicable laws of such Qualifying Jurisdictions who have complied with the relevant provisions of such applicable laws;
11.1.8. that the Purchased Shares and Additional Shares:
11.1.8.1. subject to compliance with the prudent investor standards and general investment provisions and restrictions of the statutes listed under the heading "Eligibility for Investment" in the Prospectus (and, where applicable, the regulations under those statutes) and, in certain cases, subject to the satisfaction of additional requirements relating to investment or lending policies, standards, procedures or goals and, in certain circumstances, the filing of those policies and goals, will not at the date of their sale be precluded as investments under those statutes;
11.1.8.2. are qualified investments for a trust governed by a registered retirement savings plan, a registered retirement income fund, a registered education savings plan or a deferred profit sharing plan (the "Plans") under the Income Tax Act (Canada) and the regulations thereunder; and
11.1.8.3. based upon information provided by the Company, do not constitute foreign property for the Plans and other persons subject to tax under Part XI of the Income Tax Act (Canada);
11.1.9. that the form of global the certificate representing the Notes has been Shares was approved by the Corporation directors of the Company and complies is in compliance with the provisions requirements of the Trust Indenture; Canada Business Corporations Act and the rules of the TSX;
11.1.10. that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed entering into by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability Company of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, agreement and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, thereunder do not and will not result in a breach of or a default under any of (A) the provisions of the constating documents and by-laws of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA Company and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application laws of the Province of Ontario or and the Federal laws of Canada applicable therein is necessary therein; and
11.1.11. that, if any sales of Purchased Shares or Additional Shares are made in order the United States pursuant to preserve or protect this agreement, the validity or enforceability Underwriters will receive an opinion from Torys LLP, U.S. counsel to the Underwriters, with respect to the availability of exemptions from registration under the U.S. Securities Act for such sales.
11.2. The Underwriters will receive at the Time of Closing a favourable legal opinion dated the Closing Date from their counsel, Osler, ▇▇▇▇▇▇ & Harcourt LLP, with respect to such of the Trust Indenture; and that matters described in section 11.1 as the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel Underwriters may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers)reasonably request, and in providing such opinion, Osler, ▇▇▇▇▇▇ & Harcourt LLP may rely, to the extent appropriate in the circumstances, as to matters of factappropriate, on certificates of an officer fact, opinion of local counsel and the Corporationopinion of Torys LLP referred to in section 11.1.
(b) 11.3. The Underwriters will receive at the Time of ClosingClosing an opinion of Quebec counsel to the Company addressed to the Underwriters, the Dealers Company and their respective counsel that, subject to general investment provisions, the Qualified Shares will, upon their issue, be eligible investments or will have received from their counsel, Torys LLP, a legal opinion dated not be precluded as investments under the Closing DateQuebec statutes set out under the heading "Eligibility for Investment" in the Prospectus, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:.
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made 11.4. The Underwriters will receive at the Time of Closing after giving effect an opinion of Quebec counsel to the transactions contemplated herebyCompany, except for representations and warranties which are made as of a specific date other than addressed to the Closing DateUnderwriters, in which case they will be true form and correct in substance acceptable to Underwriters' counsel, acting reasonably, regarding compliance with all material respects as the laws of that date only;
(iii) no order, ruling or determination having Quebec relating to the effect of ceasing the trading or suspending the sale use of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to French language in connection with the best distribution of the knowledge Qualified Shares.
11.5. The Underwriters will receive at the Time of such officersClosing an opinion of ▇▇▇▇▇ & Overy, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwiseBelgium counsel to Vandenborre Technologies N.V., in form and substance acceptable to Underwriter's counsel, acting reasonably, regarding the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limiteditems listed below. In providing such opinion, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by & ▇▇▇▇▇’▇ Investors Servicemay, Inc. for where appropriate in the Notes shall be at least “Baa1” (stable)circumstances, rely as to matters of fact on certificates of the credit rating issued by DBRS Limited for Company's officers and/or directors, publications in the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver Annex to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited Moniteur Belge/Belgisch Staatsblad and Fitch Ratings Limited confirming such respective ratingscertificates of government agencies. Such opinion may contain the customary qualifications and assumptions:
11.5.1. the incorporation and existence of Vandenborre Technologies N.V. under Belgium law;
(e) 11.5.2. the Supplemental Indentures shall have been executed incorporation and delivered by each existence of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonablyVandenborre Hydrogen Systems N.V. under Belgium law;
(f) evidence satisfactory to the Dealers 11.5.3. that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken business carried out by or on behalf of the Corporation and its SubsidiariesVandenborre Technologies N.V., as applicabledescribed in a certificate of an officer of Vandenborre Technologies N.V., including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance is not inconsistent with the provisions of this Agreement the Belgium Company Code applicable to it or its corporate purpose as described in its articles of association;
11.5.4. that Vandenborre Technologies N.V. may own or lease assets and properties to the Trust Indenture.extent that such is related with its corporate purpose as described in its articles of association or is furthering the realization of its corporate purpose;
11.5.5. that the business carried out by Vandenborre Hydrogen Systems N.V., as described in a certificate of an officer of Vandenborre Hydrogen Systems N.V., is not inconsistent with the provisions of the Belgium Company Code applicable to it or its corporate purpose as described in its articles of association; and
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver legal counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local legal counsel acceptable to them legal counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions, limitations and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and a limitation that no opinion is expressed as to the enforceability of the rights of indemnity, contribution or waiver of contribution set forth in this Agreement;
(e) the execution and delivery of this Agreement and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles or articles of the Corporation, any resolutions of the shareholders or directors of the Corporation, or the British Columbia Business Corporations Act or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) upon payment therefore and issuance in accordance with the terms of this Agreement, the Offered Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) 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 Canadian Securities Laws to permit the Offered Shares to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over-Allotment Option to the Underwriters;
(j) the Offered Shares will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans and tax free savings accounts;
(k) subject only to the standard listing conditions and the requirements set forth in the conditional approval letters of the TSX and NASDAQ, the Offered Shares have been conditionally listed or approved for listing on the TSX and NASDAQ; and
(l) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing, in a form acceptable to the Co-Lead Underwriters and their legal counsel, acting reasonably.
(2) the Underwriters receiving, at the Time of Closing, favourable legal opinions from legal counsel to the Dealers will have received from Corporation acceptable to the Co-Lead Underwriters, regarding certain material Subsidiaries in a form acceptable to the Co-Lead Underwriters and their legal counsel, Torys LLPacting reasonably, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect effect set out below:
(a) the Subsidiaries having been incorporated and existing under their jurisdiction of incorporation;
(b) the Subsidiaries having the corporate power and capacity to such matters own and lease their properties and assets and to conduct their businesses as described in the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Prospectus; and
(c) at the Time of Closing, the Corporation will deliver as to the Dealers a certificate authorized and issued share capital of the Subsidiaries, all of which are owned by the Corporation;
(3) the Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersCo-Lead Underwriters, acting reasonably, in form and content satisfactory to the Co-Lead Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one (1) Business Day prior to the Closing Date;
(5) the Underwriters receiving, at the Time of Closing, a “bring down” comfort letter dated the Closing Date from the auditors of the Corporation, MNP LLP, in form and substance satisfactory to the Co-Lead Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(c) hereof;
(6) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Co-Lead Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby;
(7) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(8) the Underwriters receiving, except for representations at the Time of Closing, a certificate from Olympia Trust Company as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific business day on the date other than prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii9) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Shares or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSX or NASDAQ;
(iv10) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materialsapproval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX and NASDAQ, there has been no material adverse change, financial or otherwise, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional listing approval letters of the Corporation TSX and its Subsidiaries (taken NASDAQ, as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)applicable;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi11) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Closing;
(i12) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii13) createthe Underwriters having received at the Time of Closing such further certificates, issue opinions of legal counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions Underwriters or their legal counsel shall request any such certificate or document within a reasonable period prior to the Time of this Agreement Closing that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Merus Labs International Inc.)
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agents to complete each Closing and to arrange for the satisfaction purchase of the following conditionsOffered Securities at each Closing Time, and which conditions are to be satisfied by the Corporation at or prior to each Closing Time and may be waived in writing in whole or in part by the Agents:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to deliver to the Dealers and their counsel, Torys LLP, a Agents favourable legal opinion opinions dated and delivered on the Closing Date, in form and substance satisfactory to the Agents, acting reasonably (it being understood that such counsel may rely to the extent appropriate in the circumstance: (i) as to matters of fact, on certificates of the Corporation executed on its behalf by a senior officer of the Corporation, on certificates of the Transfer Agent, as to its appointment as such and the issued capital of the Corporation and on certificates of the Warrant Agent as to its appointment as such; and (ii) on certificates of public officials), with respect to the following matters (subject to usual and customary assumptions and qualifications):
(i) the Corporation is a corporation existing under Canada Business Corporations Act and has all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets;
(ii) the Corporation has all necessary corporate capacity, power and authority: (A) to execute and deliver each of the Transaction Documents and to perform its obligations hereunder and thereunder, (B) to issue, sell and deliver the Offered Securities, (C) to grant the Over-Allotment Option, and (D) to create, issue and deliver the Compensation Securities and Advisory Fee Securities;
(iii) the authorized and issued and outstanding share capital of the Corporation; ;
(iv) all necessary corporate action has been taken by the creation, authorization, issue Corporation to authorize the execution and sale delivery of each of the Notes; Transaction Documents and the authorization performance of its obligations hereunder and thereunder, and each of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes Transaction Documents has been approved duly executed and delivered by the Corporation and complies with the provisions constitutes a legal, valid and binding obligation of the Trust Indenture; that Corporation enforceable against the Corporation has appointed in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the Trustee as trustee under rights of creditors generally and subject to other standard assumptions and qualifications, including the Trust Indenture; qualifications that the Trustee, at its principal office equitable remedies may be granted in the City discretion of Torontoa court of competent jurisdiction and that enforcement of rights to indemnity, has been duly appointed contribution and waiver of contribution set out in this Agreement may be limited by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that Applicable Law;
(v) the execution and delivery of each of the Transaction Documents and the fulfilment of the terms hereof and thereof by the Corporation of, and the performance issuance, sale and delivery of the Offered Securities to be issued and sold by the Corporation at the Closing Time, the grant of its obligations under this Agreement the Over-Allotment Option and the Trust Indenturecreation, including the issuance and delivery of the Notes, Compensation Securities and Advisory Fee Securities do not and will not result in a breach of any or a default under, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with: (A) the provisions of the constating documents of the Corporation, or ; (B) any resolutions of the shareholders or directors (including of any committee thereof) of the Corporation; or (C) any applicable corporate law or Securities Laws;
(vi) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of general application applicable each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators;
(vii) the Unit Shares have been duly and validly created and issued as fully paid and non-assessable shares in the Offering Jurisdictions; capital of the Trust Indenture complies Corporation;
(viii) the Warrants have been duly and validly created and issued and the Warrant Shares have been reserved and authorized and allotted for issuance, and upon the payment therefor and the issue thereof upon exercise of the Warrants in accordance with the provisions of the CBCA Warrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(ix) the Advisory Fee Shares have been duly and validly created and issued as fully paid and non-assessable shares in the capital of the Corporation;
(x) the Advisory Fee Warrants have been duly and validly created and issued;
(xi) the Advisory Fee Warrant Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the Business Corporations Act (Ontario); the issuance issue thereof upon exercise of the Notes under the Trust Indenture complies Advisory Fee Warrants in accordance with the provisions of the CBCA; Advisory Fee Warrant Certificate, the reporting issuer status Advisory Fee Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation under applicable Corporation;
(xii) the Compensation Options have been duly and validly created and issued;
(xiii) the Compensation Shares have been duly and validly created and reserved for issuance and the Compensation Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Compensation Options in accordance with the provisions of the Compensation Option Certificate, the Compensation Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(xiv) the Compensation Warrants have been duly and validly created and reserved for issuance and the Compensation Warrants have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Compensation Options in accordance with the provisions of the Compensation Option Certificate, the Compensation Warrants will be duly and validly issued;
(xv) the Compensation Warrant Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Compensation Warrants in accordance with the provisions of the Compensation Warrant Certificate, the Compensation Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(xvi) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Over-Allotment Option, the Compensation Securities and Advisory Fee Securities are accurately summarized in all material respects in the Offering Documents;
(xvii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording Regulators in each of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Qualifying Jurisdictions have been obtained by the Corporation to purchasers qualify the distribution to the public of the Offered Securities in each of the Offering JurisdictionsQualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Compensation Options and Advisory Fee Units to the Agents and Lead Agents, in accordance with as applicable;
(xviii) the terms issuance by the Corporation of the Warrants Shares upon the due exercise of the Warrants, the issuance of the Advisory Fee Warrants Shares upon the due exercise of the Advisory Fee Warrants, the issuance of the Compensation Shares and conditions the Compensation Warrants upon the due exercise of this Agreement, isthe Compensation Options and the issuance of the Compensation Warrant Shares upon exercise of the Compensation Warrants is exempt from, or will be exempt from is not subject to, the prospectus and registration requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus will be required, no or other document will be documents are required to be filed, no proceeding will be required to be taken and no approval, permit, consent, orderproceedings taken, or authorization of any regulatory authority will be required to be approvals, permits, consents or authorizations obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes Qualifying Jurisdictions in connection therewith;
(xix) the Corporation is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not on the payment list of any fees related theretodefaulting reporting issuers maintained by the Canadian Securities Regulators;
(xx) subject to the qualifications and assumptions set out therein, the statements set forth in the Final Prospectus under the heading “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(xxi) Odyssey Trust Company has been appointed as Warrant Agent; and
(xxii) such other matters as may reasonably be requested by the Agents no less than 48 hours prior to the Closing Time. It is understood that In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel to the Corporation in the Qualifying Jurisdictions acceptable to them counsel to the Agents, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities, the grant of the Over-Allotment Option and the issuance of the Compensation Securities and Advisory Fee Securities, or opinions may be given directly by local counsel to the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local province in which counsel directly addressed to the Dealers)Corporation is qualified to practise, and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) at the Time of Closing, Corporation will cause favourable legal opinions to be delivered to the Dealers will have received from their Agents by the Corporation’s counsel, Torys LLPdated and delivered on the Closing Date, regarding the Corporation’s Subsidiary, in form and substance satisfactory to the Agents, acting reasonably, with respect to the following matters:
(i) the Subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(ii) each Subsidiary having all requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets; and
(i) the authorized and issued share capital of the Subsidiary and the ownership thereof;
(c) the Corporation will cause the Corporation’s Auditors to deliver to the Agents a legal opinion comfort letter, dated and delivered on the Closing Date, in form and substance satisfactory to the DealersAgents, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letter referred to in Section 6(b)(iv);
(d) in addition to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closingcomfort letter referred to in Section 12(c), the Corporation will cause the Corporation’s Auditors to provide comfort on such additional information as the Agents may request in their sole discretion;
(e) the Corporation will deliver a certificate of the Corporation, addressed to the Dealers a certificate Agents and dated the Closing Date addressed to the Dealers and their counselDate, and signed on behalf of the Corporation, but without personal liability, by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other senior officers of the Corporation as may be acceptable to the DealersAgents, acting reasonably, in form and substance satisfactory to the Agents, acting reasonably, certifying for with respect to: (i) the articles and bylaws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Securities to be issued and sold by the Corporation, the grant of the Over-Allotment Option, the issuance of the Compensation Securities and Advisory Fee Securities and the authorization of the Offering Documents, the Transaction Documents and the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(f) the Corporation will deliver a certificate of the Corporation, addressed to the Agents and their counsel and dated the Closing Date, and signed on behalf of the Corporation (Corporation, but without personal liability) , by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other senior officers of the Corporation as may be acceptable to the Agents, acting reasonably, in form and substance satisfactory to the Agents, acting reasonably, certifying, to the best of the knowledge, information and belief of the Persons so signing, after having made due enquiry and after having reviewed the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied or satisfied, other than conditions which have been waived by the Agents, at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects (provided that any representations and warranties that are qualified as of to materiality shall be true and correct in all respects) as at the Time of Closing Time, with the same force and effect as if made on and as at the Time of Closing Time, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened under any Securities Laws or by any regulatory authority; and
(iv) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus
(A) there has been no material adverse changechange (actual, anticipated, contemplated, threatened, or prospective, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects, capital or prospects control of the Corporation (on a consolidated basis), and (B) no transaction has been entered into by the Corporation or its Subsidiary which is material to the Corporation (on a consolidated basis), other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(g) the Corporation will have made and/or obtained all necessary filings, approvals, permits, consents and acceptances to or from, as the case may be, the board of directors, the Securities Regulators, the CSE, and any other applicable person required to be made or obtained by the Corporation in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Corporation and the Agents, acting reasonably, prior to the Closing Date or such later date as may be permitted under the Securities Laws, it being understood that the Agents will do all that is reasonably required to assist the Corporation to fulfil this condition;
(h) the Agents will have received a certificate from Odyssey Trust Company with respect to its appointment as transfer agent and registrar of the Common Shares, and the number of Common Shares issued and outstanding as at the end of the Business Day immediately prior to the Closing Date;
(i) the Agents will have received a certificate of compliance or the equivalent in respect of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, Subsidiary issued by the appropriate regulatory authority in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of respective jurisdictions in which the Corporation and its Subsidiaries (taken as a whole)Subsidiary are incorporated, from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or dated within one Business Day prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(viij) Odyssey Trust Company will be, as of the Acquisition has not lapsed or been withdrawnClosing Date, duly appointed as Warrant Agent under the Warrant Indenture;
(viiik) the Separation Agreement has not been terminated Agents will have received a reporting issuer certificate or amended in any material respect, no material provision has been waived by report for each of the Qualifying Jurisdictions confirming that the Corporation and no event has occurred is a reporting issuer not in default of applicable Canadian Securities Laws, dated or condition exists which, retrieved within two (2) Business Days prior to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation AgreementClosing Date;
(ixl) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time subscriptions for an aggregate gross amount of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or $2,500,000 shall have publicly announced that it has under surveillance or reviewbeen received and not withdrawn in connection with the Offering (including the Over-Allotment Option, with possible negative implications, its rating of the Notesif exercised); and
(xm) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable)extent not previously provided, the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures Agents shall have been executed and delivered by each of received the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.loc
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations of the Dealers hereunder are Trust to sell the Notes to purchasers, and for the purchasers to purchase the Notes from the Trust, will be subject to the satisfaction of the following conditions, which conditions may be waived in writing in whole or in part by the party entitled to the benefit thereto:
(a) at the Time of ClosingTrust and the Agents shall have complied fully with all Applicable Securities Laws, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver prior to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect Closing Time;
(b) all conditions precedent to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies shall have been satisfied;
(c) the Agents shall have received a legal opinion from the Trust’s counsel, in form and content satisfactory to the Agents and their counsel, acting reasonably, addressed to the Agents and, with respect to item (iv) any Subscriber located in the provisions of United States, as to (i) the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording establishment and existence of the Trust Indenture withand the Seller; (ii) the due authorization, any governmental or regulatory authority under any applicable statute or regulation execution and delivery, and the enforceability of general application of this Agency Agreement and the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect Subscription Agreements; (iii) the validity or enforceability of the Trust IndentureNotes against the Trust; (iv) (A) the offer and that the offering, issuance, sale and delivery of the Class A-1b Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be United States being exempt from the prospectus registration requirements of Canadian the U.S. Securities Laws and no prospectus will be requiredAct, no other document will be (B) the Indenture not being required to be filedqualified under the Trust Indenture Act of 1939, no proceeding will be required and (C) the Trust not being, and after giving effect to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue offer and sale of the Notes and the payment application of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them proceeds thereof as to matters governed by described in the laws of jurisdictions other than Canada Private Placement Memorandum and the Provinces Offering Memorandum, required to register as an “investment company” under the U.S. Investment Company Act; (v) the offer and sale of Ontariothe Class A-1a, Québec, British Columbia Class A-2b and Alberta, (or alternatively make arrangements to have such opinions Class B Notes in Canada being exempt from the prospectus requirements of local counsel directly addressed to the Dealers)Applicable Securities Laws of the Selling Provinces, and may rely, to the extent appropriate in the circumstances, as to (vi) true sale matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Purchase Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” Trust and the credit rating issued by Fitch Ratings Limited for Agents shall have received from the Notes shall be at least “A- (stable)” and the Corporation shall deliver Rating Agencies on or prior to the Dealers letters Closing Date confirmation in writing that (i) the Class A-1a Notes and Class A-1b Notes will each receive a rating of “P-1” from ▇▇▇▇▇’▇ Investors Serviceand a rating of “R-1(high)” from DBRS, Inc.(ii) the Class A-2b Notes will receive a rating of “Aaa” from ▇▇▇▇▇’▇ and “AAA” from DBRS, DBRS Limited and Fitch Ratings Limited confirming such respective ratings(iii) the Class B Notes will receive a rating of “A2” from ▇▇▇▇▇’▇ and a rating of “A” from DBRS;
(e) the Supplemental Indentures Agents shall have been executed and delivered by each received a copy of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonablyAgreed Upon Procedures letter;
(f) evidence satisfactory the Agents shall have received such certificates, opinions and other documents as may reasonably be requested by the Agents and their counsel;
(g) with respect to the Dealers that Class A-1b Notes, the Corporation’s board related Subscriber shall not have exercised its Termination Right (as defined in the related Subscription Agreement);
(h) the closing for the issuance and sale of directors has authorized and approved this Agreement and the Series 2010-1 Class A-2a Asset Backed Notes of the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved shall occur contemporaneously with the issuance of the Notes and all matters relating theretoClosing; and
(gi) all actions required the Agents shall have received irrevocable Subscription Agreements to be taken by or on behalf purchase the aggregate principal amount of the Corporation Class A-1a Notes, Class A-1b Notes, Class A-2b Notes and its Subsidiaries, as applicable, including Class B Notes being offered by the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust IndentureTrust.
Appears in 1 contract
Sources: Agency Agreement (PHH Corp)
Conditions of Closing. The obligations of the Dealers Underwriters hereunder are with respect to the Offering will be subject to the completion by the Underwriters of a due diligence review satisfactory to the Underwriters in their sole judgment and to the satisfaction (or waiver by the Underwriters in their sole discretion) of the following additional conditions, as applicable, which conditions the Company covenants to exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Time:
(a) the Underwriters will receive at the Closing Time of Closing, a legal opinion addressed to the Corporation will cause its Underwriters and their counsel dated and delivered on the Closing Date from the Company’s Canadian counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Stikeman Elliott LLP, and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to deliver practice), in each case in form and substance satisfactory to the Dealers Underwriters and their counsel, Torys LLPacting reasonably, a favourable legal opinion with respect to all the following matters, subject to such matters reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriters’ counsel:
(i) the Dealers may reasonably requestCompany is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and existing under the laws of the Province of British Columbia, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the existence authorized and issued and outstanding capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Offered Shares are accurately summarized in all material respects in the Prospectus;
(v) the Offered Shares are conditionally approved for listing on the TSX;
(vi) the Offered Shares have been validly created and issued and are legal, valid, binding and enforceable obligations of the Company in accordance with their terms;
(vii) the Offered Shares will be issued as fully paid and non-assessable shares of the Company;
(viii) the Company has all necessary corporate power and capacity capacity: (i) to execute and deliver this Agreement and to perform its obligations hereunder and thereunder; and (ii) to offer, issue, sell and deliver the Offered Shares;
(ix) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Corporation; Preliminary Prospectus, the creationProspectus and any Supplementary Material and the filing thereof with the Securities Commissions, authorization, issue and sale to authorize the use and delivery of the Notes; preliminary and final U.S. Private Placement Memorandum including any amendments or supplements thereto;
(x) the authorization Company has duly authorized, executed and delivered, this Agreement and authorized the performance of its obligations hereunder, including the offering, issue, sale and delivery of the Trust Indenture; that the attributes Offered Shares, and this Agreement constitutes a legal, valid and binding obligation of the Notes Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are consistent customary of an offering of this nature;
(xi) the execution and delivery of this Agreement and the other Transaction Documents and the fulfillment of the terms hereof and thereof, the offering, issue, sale and delivery of the Offered Shares and the consummation of the transactions contemplated by this Agreement, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the notice of articles and articles of incorporation or amalgamation, as applicable, of the Company, (ii) resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (iii) the laws of the Province of British Columbia and the federal laws of Canada applicable therein;
(xii) the form and terms of the definitive certificates representing the Common Shares have been approved by the directors of the Company and comply in all material respects with the description thereof in BCBCA, the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation articles and complies with the provisions by-laws of the Trust Indenture; that Company and the Corporation has appointed rules of the Trustee as trustee under TSX;
(xiii) Computershare Investor Services Inc. is the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by registrar and transfer agent for the Corporation as the paying agent in respect Common Shares;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation ofappropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and the performance by the Corporation of its obligations under this Agreement and the Trust Indentureall necessary legal requirements have been fulfilled, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect qualify the validity or enforceability distribution of the Trust Indenture; and that the offering, issuance, sale and delivery Offered Shares in each of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and no prospectus will be requiredwho have complied with the relevant provisions of such Applicable Laws;
(xv) subject only to the Standard Listing Conditions, no other document will be required the Offered Shares have been conditionally listed or approved for listing on the TSX;
(xvi) the statements in the Prospectus under the heading “Eligibility for Investment”, accurately summarize such law applicable to be filedthe Offered Shares;
(xvii) the statements in the Prospectus under the heading “Certain Canadian Federal Income Tax Considerations”, no proceeding will be required to be taken provide a fair and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale adequate summary of the Notes principal Canadian federal income tax provisions under the Income Tax Act (Canada) that generally apply to a holder of Common Shares who acquires Common Shares under the Offering contemplated in the Prospectus, subject to the qualifications, limitations and understandings set out in such summary; and
(xviii) as to all other legal matters reasonably requested by counsel to the payment of any fees related theretoUnderwriters at least two Business Days prior to the Closing Time. It is understood that In connection with such counsel opinion, Stikeman Elliott LLP may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Shares or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (province or alternatively make arrangements provinces in which Stikeman Elliott LLP are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, circumstances but only as to matters of fact, on certificates of an officer officers of the Corporation.Company and others;
(b) if any of the Offered Shares are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date of ClosingD▇▇▇▇▇ & W▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Underwriters to the effect that no registration is required under the U.S. Securities Act in connection with the offer and sale of such Offered Securities under Rule 144A, provided, in each case, that such offer, sale and delivery of Offered Shares in the United States is made in compliance with this Agreement and the terms set out in Schedule “A” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of any Offered Shares. In providing the foregoing opinion, such counsel may rely upon the covenants, representation and warranties of the Company and the Underwriters set forth in this Agreement and Schedule “A” hereto, and upon the covenants, representation and warranties of any purchasers in the United States;
(c) the Underwriters shall have received legal opinions from legal counsel to, and duly qualified to practice law in the jurisdiction of existence of, each Material Subsidiary, addressed to the Underwriters and legal counsel to the Underwriters with respect to: (i) the existence of each Material Subsidiary; (ii) the issued and outstanding securities of each Material Subsidiary and the securities thereof held by the Company or a Subsidiary; and (iii) the power and capacity of each Material Subsidiary to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Underwriters and their legal counsel;
(d) the Underwriters shall have received a certificate dated the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Underwriters, in form and content satisfactory to the Underwriters’ counsel, acting reasonably, with respect to:
(i) the notice of articles and articles and by laws of the Company;
(ii) resolutions of the Company’s board of directors relevant to, among other things, the Dealers will issue and sale of the Offered Shares to be issued and sold by the Company and the authorization of this Agreement and the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(e) the Underwriters shall have received from their counsela certificate of status or the equivalent dated within one Business Day of the Closing Date, Torys in respect of the Company and each Material Subsidiary;
(f) the Company shall cause its current auditors, MNP LLP, to deliver to the Underwriters a legal opinion “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letters referred to the extent governed by the laws of Alberta, Ontario or Québec.in Section 5(a)(iii) hereof;
(cg) at the Time of Closing, the Corporation will Company shall deliver to the Dealers a certificate Underwriters, at the Closing Time, certificates dated the Closing Date addressed to the Dealers and their counsel, Underwriters and signed by the chief executive officer Chief Executive Officer of the Company and the chief financial officer Chief Financial Officer of the Corporation Company, or such other officers senior officer(s) of the Corporation Company as may be acceptable to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (Company and without personal liability) , to the effect that:
(i) the Corporation Company has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation Company contained herein are true and correct in all material respects (except for those that are qualified by materiality or Material Adverse Effect which shall be true and correct in all respects) as of at the Closing Time of Closing with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Disclosure MaterialsProspectus, final Private Placement Memorandum or any Supplementary Material (A) there has been no material adverse change, change (financial or otherwise, ) in the business, assets (including intangible assets), affairs, operations, assets, liabilities (contingent or otherwise), capital capital, properties, condition (financial or prospects otherwise) or results of operations or control of the Corporation Company and its the Subsidiaries (taken as a whole), and (B) no transaction has been entered into by the Company or any development involving a prospective Subsidiary which is material adverse change, financial or otherwise, in to the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of Company and the Corporation and its Subsidiaries (taken as a whole), from that other than as disclosed in the Corporation’s Information Record Prospectus, the final Private Placement Memorandum or the Disclosure Materials (as they existed at the respective dates thereof)in any Supplementary Material;
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed with Canadian Securities Regulators forming Prospectus or final Private Placement Memorandum which fact or change is, or may be, of such a nature as to render any statement in the Corporation’s Information Record contained Prospectus or final Private Placement Memorandum misleading or untrue in any material respect or which would result in a misrepresentation as at in the time Prospectus or final Private Placement Memorandum or which would result in the relevant document was filed that has Prospectus or final Private Placement Memorandum not since been corrected;complying with Applicable Securities Laws; and
(vi) such other matters as the Acquisition Underwriters may reasonably request;
(h) the Underwriters shall have received copies of correspondence indicating that the Company has not been terminated obtained all necessary approvals for the issuance of the Offered Shares to be listed on the TSX, subject only to the Standard Listing Conditions;
(i) the representations and warranties of the Company contained in this Agreement will be true and correct in all material respects (except for those that are qualified by materiality or amended Material Adverse Effect which shall be true and correct in any material respectall respects) at and as of the Closing Time on the Closing Date, no material provision has been waived as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on Company at or prior to the Outside DateClosing Time on the Closing Date will have been performed, substantially and in all material respects as contemplated complied with or satisfied prior to that time;
(j) the absence of any misrepresentations in the 2.7 AnnouncementOffering Documents;
(k) the Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Corporation has no reason Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(l) the Underwriters shall have received a certificate from Computershare Investor Services Inc. as to believe that the Acquisition will not be completed in accordance with number of Common Shares issued and outstanding as at the 2.7 Announcement on or date immediately prior to the Outside Closing Date;
(viim) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, Underwriters will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to received such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Servicecertificates, Inc. for the Notes shall be at least “Baa1” (stable)opinions, the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company agreements or closing documents in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f) evidence satisfactory to , as the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture andUnderwriters may request, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretoacting reasonably; and
(gn) all actions required directors and executive officers of the Company and their respective associates will have entered into an agreement with, and in form and substance satisfactory to be taken the Underwriters, acting reasonably, at the Closing Time on the Closing Date pursuant to which they will agree not to, for a period ending on the date that is 90 days following the Closing Date, directly or indirectly offer, sell, contract to sell, lend, swap or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with, or publicly announce any intention to offer, sell, contract to sell, grant or sell any option to purchase, hypothecate, pledge, transfer, assign, purchase any option or contract to sell, lend, swap, or enter into any agreement to transfer the economic consequences of, or otherwise dispose of or deal with, whether through the facilities of a stock exchange, by private placement or otherwise, or announce any intention to do any of the foregoing, any Common Shares or other securities of the Company held by them, directly or indirectly, unless (a) the prior written consent of the Lead Underwriters on behalf of the Corporation and its SubsidiariesUnderwriters (such consent not to be unreasonably withheld or delayed) has been obtained, as applicable, including the passing or (b) there occurs a take-over bid or similar transaction involving a change of all requisite resolutions control of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust IndentureCompany.
Appears in 1 contract
Sources: Underwriting Agreement (Mogo Finance Technology Inc.)
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Purchased Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of ClosingUnderwriters receiving favourable legal opinions from Stikeman Elliott LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (Ontario) and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) at the Time Corporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement, (ii) to create, issue and sell the Offered Shares, and (iii) to grant the Over-Allotment Option;
(c) the authorized and issued capital of Closingthe Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms of this Agreement by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Shares in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(i) subject to the qualifications and assumptions set out therein, the Dealers will statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(j) subject only to the standard listing conditions, the Offered Shares have received from been conditionally listed or approved for listing on the TSX; and
(k) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably.
(2) the Underwriters receiving favourable legal opinions from counsel to the Subsidiary in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set out below:
(a) the Subsidiary having been incorporated and existing under the Business Corporations Act (Ontario);
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(3) if any of the Offered Shares are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer and sale of such Offered Shares under Rule 144A, provided, in each case, that such offer, sale and delivery of Offered Shares in the United States is made in compliance with this Agreement and the terms set out in Schedule “C” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of any Offered Shares. In providing the foregoing opinion, such counsel may rely upon the covenants, representation and warranties of the Notes to Corporation and the extent governed by Underwriters set forth in this Agreement and Schedule “C” hereto, and upon the laws covenants, representation and warranties of Alberta, Ontario or Québec.any purchasers in the United States;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiary, each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation or the Subsidiary which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials Supplementary Material, as the case may be; and
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as they existed at to render any statement in the respective dates thereof)Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws;
(v) none 8) the Underwriters receiving the executed lock-up agreements from each director and executive officer of the documents filed with Canadian Securities Regulators forming Corporation (other than as contemplated by Section 8(3)) in favour of the Corporation’s Information Record contained Underwriters in a misrepresentation form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(9) the Underwriters receiving a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the time end of business day on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii10) no order, ruling or determination having the Acquisition has not lapsed effect of ceasing or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended suspending trading in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating prohibiting the sale of the Notes; and
(x) as Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to such other matters the knowledge of a factual nature as the Dealers and Corporation, threatened by any securities regulatory authority or the Dealers’ counsel may reasonably request; and such statements shall be true in factTSX;
(d11) the credit rating issued Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX, subject only to satisfaction by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsof standard listing conditions;
(e12) the Supplemental Indentures shall have been executed Corporation complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i13) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Aphria Inc.)
Conditions of Closing. 4.1 The obligations obligation of SAC and/or Softquad USA to purchase the Dealers hereunder are Softquad Canada Shares shall be subject to the satisfaction following conditions for the exclusive benefit of the following conditionsSAC to be fulfilled and/or performed at any time:
(a) at SAC and/or Softquad USA shall, upon written request therefor made prior to the Time execution of Closingthis agreement by the Selling Shareholder, receive the opinion of counsel to the Selling Shareholder, which counsel shall be reasonably satisfactory to SAC and/or Softquad USA, in form and terms reasonably satisfactory to counsel of SAC and/or Softquad USA, to the effect that this Lockup Agreement has been duly executed and delivered by, and constitutes a legal, valid and binding obligation of, the Corporation will cause Selling Shareholder enforceable against the Selling Shareholder in accordance with its counselterms, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver subject to the Dealers qualifications that enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally and their counselthat specific performance and injunction and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction;
(b) no action or proceeding shall be pending or threatened by any person, Torys LLPcompany, a favourable legal opinion with respect firm, governmental authority, securities commission, regulatory body or agency to all such matters as enjoin or prohibit the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue purchase and sale of the Notes; Softquad Canada Shares contemplated hereby or the authorization right of the Trust Indenture; that SAC and/or Softquad USA to own the attributes Softquad Canada Shares or to suspend or stop trading in securities of Softquad Canada;
(c) the covenants, representations and warranties of the Notes are consistent Selling Shareholder contained in all material respects with the description thereof in the Term Sheets; that the form Article 2 hereof shall be true and correct on and as of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue the acceptance of this Lockup Agreement and sale of at the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.Closing Date;
(bd) the Selling Shareholder shall have complied with all covenants and agreements herein agreed to be performed or caused to be performed by it;
(e) SAC and/or Softquad USA shall have received at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, Closing Date a legal opinion certificate dated the Closing Date, in form and substance reasonably satisfactory to SAC and/or Softquad USA, executed by the DealersSelling Shareholder to the effect that the Selling Shareholder has neither authorized nor taken any act referred to in subsection 2.1 (a) and that no state of facts exists which would entitle the Selling Shareholder to rescind the Agreement. In case any of the foregoing conditions have not been fulfilled and/or performed at or before the Closing Date to the satisfaction of SAC and/or Softquad USA, SAC and/or Softquad USA may rescind this Lockup Agreement by notice to the Selling Shareholder and in such event SAC and/or Softquad USA shall be released from all obligations hereunder; provided that any of such conditions may be waived in whole or in part by SAC and/or Softquad USA without prejudice to its rights of rescission in the event of the non-fulfillment of any other condition or conditions.
4.2 The obligation of SAC and/or Softquad USA to purchase the Softquad Canada Shares shall be subject to the further condition for the exclusive benefit of SAC that, on or before the close of business on March 1, 2000, SAC shall be satisfied that it is or will be in compliance with all applicable legal and regulatory requirements relating to it with respect to such matters as its investment in the Dealers may reasonably require relating to Softquad Canada Shares and shall have received, in its discretion, all necessary or appropriate orders, rulings and consents from regulatory bodies, securities commissions, government agencies and others with respect thereto.
4.3 In the distribution of event that SAC shall not have notified the Notes to Selling Shareholder on or before 4:00 o'clock in the extent governed by the laws of Albertaafternoon Toronto, Ontario time on March 1, 2000 that the condition referred to in Section 4.2 has been fulfilled or Québecwaived, then such condition shall be deemed not to have been fulfilled.
(c) at 4.4 In the Time of Closing, event that the Corporation will deliver condition referred to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose section 4.3 shall not have been instituted fulfilled or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists whichSAC and/or Softquad USA, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation this Lockup Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” rescinded and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, parties hereto shall be released from all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indentureobligations hereunder.
Appears in 1 contract
Sources: Option Holder Lock Up Agreement (Softquad Software LTD)
Conditions of Closing. 14.1 The Underwriters’ obligations of the Dealers hereunder are under this Agreement shall be subject to the satisfaction following conditions being fulfilled which are for the exclusive benefit of the following conditionsUnderwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 15.2 hereof:
(a) The Corporation shall furnish to the Underwriters (i) at the Time Closing Time, and, if the Over-Allotment Option is exercised, at the Over-Allotment Closing Time, an opinion and letter of Closing▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special United States counsel for the Corporation will cause its counselCorporation, addressed to the Underwriters, and dated the Closing Date or such Over-Allotment Closing Date, as applicable, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form of the respective opinion and letter set forth in Exhibit B hereto, and (ii) at the Closing Time, and, if the Over-Allotment Option is exercised, at the Over-Allotment Closing Time, an opinion of Goodmans LLP, Canadian counsel for the Corporation, addressed to the Underwriters, and dated the Closing Date or such Over-Allotment Closing Date, as applicable, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form set forth in Exhibit C hereto, provided that Goodmans LLP in turn may rely upon or deliver the opinions of local counsel where it deems such reliance or delivery proper as to the laws other than those of the Province of Ontario and the federal laws of Canada applicable therein;
(b) the Underwriters shall have received (i) a legal opinion, dated as of the Closing Date and, if the Over-Allotment Option is exercised, dated as of such Over-Allotment Closing Date, and addressed to the Underwriters, from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver Canadian counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect to such matters as the Dealers Underwriters may reasonably require relating request, and (ii) a letter, dated as of the Closing Date and, if the Over-Allotment Option is exercised, dated as of such Over-Allotment Closing Date, and addressed to the distribution Underwriters, from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Underwriters, with respect to the Registration Statement, the U.S. Preliminary Prospectus together with any Permitted Free Writing Prospectus, and the U.S. Prospectus, in each case of (i) and (ii), in form and content to the reasonable satisfaction of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Underwriters;
(c) at the Time of Closing, the Corporation Underwriters will deliver to the Dealers a certificate have received certificates dated the Closing Date addressed to Date, and, if the Dealers and their counselOver-Allotment Option is exercised, and dated the Over-Allotment Closing Date, signed by the chief executive officer and the chief financial officer of the Corporation or such other those senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to all such matters as the Underwriters may reasonably request, including the following:
(i) the constituent documents of the Corporation;
(ii) the resolutions of the Directors of the Corporation relevant to the approval of the Final Shelf Prospectus, the Preliminary Prospectus Supplement and the Prospectus Supplement and the signing (as applicable) and filing thereof, the allotment, issue and sale of the Offered Securities and the authorization of this Agreement and the other agreements and transactions contemplated by this Agreement and each of the Material Agreements; and
(iii) the incumbency and signatures of signing officers of the Corporation;
(d) the Underwriters shall have received at the Closing Time and, if the Over-Allotment Option is exercised, at the Over-Allotment Closing Time, a certificate dated the Closing Date, and, if the Over-Allotment Option is exercised, dated the Over-Allotment Closing Date, as applicable, addressed to the Underwriters and signed by two senior officers of the Corporation, certifying for and on behalf of the Corporation (without personal liability) Corporation, after having made due inquiry, to those matters as the Underwriters may reasonably request, including to the effect that:
(i) subsequent to the respective dates as at which information is given in the Supplemented Prospectus or any Supplemental Material there has been no material change (actual, anticipated, contemplated or, to the knowledge of the Corporation, threatened, whether financial or otherwise) to the business, operations, assets, liabilities, capital, cash flow or condition (financial or otherwise) of the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior any Project Holding Group Entity or Operated ▇▇▇ or, to the Time knowledge of Closingthe Corporation, any Minority Holding Entity or Non-Operated ▇▇▇, and none of the Corporation, any Project Holding Group Entity or Operated ▇▇▇ or, to the knowledge of the Corporation, any Minority Holding Entity or Non-Operated ▇▇▇, has entered into any transaction out of the ordinary course of business which is material to the Corporation other than as disclosed in the Supplemented Prospectus or any Supplemental Material;
(ii) there are no actions, suits, proceedings or inquiries pending or to the representations and warranties knowledge of the Corporation contained herein are true and correct in all material respects as Corporation, threatened against or affecting the Corporation, any Project Holding Group Entity or Operated ▇▇▇ or, to the knowledge of the Time Corporation, any Minority Holding Entity or Non-Operated ▇▇▇ at law or in equity or before or by any federal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Corporation or any of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations by this Agreement and warranties which are made as of a specific date the other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyMaterial Agreements;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending trading in the Offered Securities or any other securities of the Corporation or prohibiting the sale of the Notes Offered Securities has been issued and issued, no proceedings for such purpose have been instituted or are pending orand, to the best of the knowledge of its knowledge, information and belief, no proceedings for such officers, purpose are pending or threatened;
(iv) since the respective dates Corporation has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied up to the Disclosure MaterialsClosing Time (or the Over-Allotment Closing Time, there has been no material adverse change, financial or otherwise, in as applicable); and
(v) the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects representations and warranties of the Corporation contained in this Agreement are true and its Subsidiaries correct as of the Closing Time (taken or the Over-Allotment Closing Time, as applicable) with the same force and effect as if made at and as of the Closing Time (or the Over-Allotment Closing Time, as applicable) (except in respect of any representations and warranties that are made as of a whole), or any development involving a prospective material adverse change, financial or otherwisespecified date, in which case they will be true and correct only as at that date) after giving effect to the business affairstransactions contemplated by this Agreement.
(e) RBC, operations, assets, liabilities (contingent or otherwise) or capital on behalf of the Corporation Underwriters, shall have received each of the signed Lock-Up Agreements referred to in Section 11.3(lll) hereof, and its Subsidiaries each such Lock-Up Agreement shall be in full force and effect at the Closing Time (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (Over-Allotment Closing Time, as they existed at the respective dates thereofapplicable);
(vf) none the Underwriters shall have received at the Closing Time and, if the Over-Allotment Option is exercised, at the Over-Allotment Closing Time, a “bring-down” comfort letter or letters dated as of the documents filed with Canadian Securities Regulators forming Closing Date and, if the Corporation’s Information Record contained Over-Allotment Option is exercised, dated the Over-Allotment Closing Date, addressed to the Underwriters from KPMG LLP (New York) substantially in the form requested by the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters by KPMG LLP (New York) pursuant to Article 7, provided that such letter may be based on a misrepresentation review by KPMG LLP (New York) having a cut-off date not more than two business days prior to the Closing Date or the Over-Allotment Closing Date, as at the time the relevant document was filed that has not since been correctedapplicable;
(vig) each of the Acquisition has not Material Agreements shall have been terminated duly executed and delivered and the form and terms of each of the Material Agreements shall be satisfactory to the Underwriters acting reasonably, and consistent in all material respects with the Supplemented Prospectus and none of such Material Agreements shall have been amended, supplemented or amended modified in any material respect, way and no material condition or provision has in any such Material Agreement shall have been waived by any party without the Corporation prior written consent of the Underwriters, acting reasonably, and no event has occurred each of the parties thereto shall have performed such of their obligations thereunder which are to be performed or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on completed at or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior Closing Time to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms satisfaction of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(gh) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors Directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Closing Time of (or the Over-Allotment Closing Time, as applicable), so as to:to validly authorize the execution (as applicable) and filing of the Final Shelf Prospectus, the Prospectus Supplement and any Supplemental Material, to grant the Over-Allotment Option, and to create and issue the Debentures and the Common Shares initially issuable upon conversion of the Debentures, in each case, having the attributes contemplated by the Supplemented Prospectus;
(i) execute the representations and deliver warranties of the Corporation contained herein shall be true and correct as of the Closing Time (or the Over-Allotment Closing Time, as applicable), with the same force and effect as if made at and as of the Closing Time (or the Over-Allotment Closing Time, as applicable) (except in respect of representations and warranties that are made as of a specified date, in which case they will be true and correct only as at that date), after giving effect to the transactions contemplated hereby;
(j) the Corporation shall have complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time (or the Over-Allotment Closing Time, as applicable);
(k) the Debentures will have been approved for listing and posting for trading on the TSX and the Common Shares initially issuable upon conversion of the Debentures will have been approved for listing on the TSX, subject only to the Standard Listing Conditions, and on the NYSE, subject only to official notice of issuance;
(l) the Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request;
(m) no U.S. prospectus or amendment or supplement to the Registration Statement or the U.S. Prospectus shall have been filed to which RBC shall have objected in writing;
(n) the U.S. Prospectus shall have been filed with the SEC pursuant to Rule 424(b) under the U.S. Securities Act at or before 5:30 p.m. (New York City time) on the second full business day after the date of this Agreement (or such earlier time as may be required under the U.S. Securities Act);
(o) prior to and at the Closing Time and, if applicable, the Over-Allotment Closing Time, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the U.S. Securities Act or proceedings initiated under Section 8(d) or 8(e) of the U.S. Securities Act; (ii) the Registration Statement and all other documents contemplated amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the U.S. Prospectus or the U.S. Preliminary Prospectus, together with any Permitted Free Writing Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under this Agreementwhich they are made, not misleading; and (iv) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and
(iip) createFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, issue and sell or other arrangements of the Notes transactions, contemplated hereby.
14.2 In giving the opinions contemplated in accordance with Section 14.1, counsel may rely:
(a) as to matters of fact, without independent verification (to the provisions extent appropriate in the circumstances), on certificates of public officials, representations made in this Agreement and certificates and other inquiries of officers of the Trust IndentureCorporation, in each case acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters’ counsel, acting reasonably, as to the qualification of the Offered Securities for sale to the public and as to other relevant matters in the Qualifying Jurisdictions and all other relevant jurisdictions; and
(c) in the case of counsel to the Underwriters and to the extent necessary, on the opinion of the Corporation’s counsel or local counsel.
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriter under this Agreement to purchase the Offered Securities at the Closing Time and at any Option Closing Time shall be subject to the satisfaction of each of the following conditions:conditions (it being understood that the Underwriter may waive in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to their rights in respect of any other of the following terms and conditions or any other or subsequent breach or non-compliance of the Corporation, provided that to be binding on the Underwriter any such waiver or extension must be in writing and signed by each of them):
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇Underwriter receiving favourable legal opinions from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers Corporation (who may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on provide the opinions of local counsel acceptable to them counsel to the Underwriter as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation existing under the BCBCA and has not been dissolved under the BCBCA;
(b) at the Time Corporation has the corporate power and corporate capacity under the BCBCA and the constating documents of Closingthe Corporation to (i) carry on its Business and activities and to own, lease and operate its properties and Business Assets, as described in the Prospectus, (ii) execute and deliver this Agreement, the Dealers Offering Documents, the Warrant Indenture and the Broker Warrant Certificate, as applicable, and perform its obligations thereunder, (iii) create, offer, issue and sell the Offered Securities, (iv) create, offer, issue and deliver the Compensation Securities, as applicable, and (iv) grant the Over-Allotment Option to the Underwriter;
(c) as to the authorized share capital of the Corporation and that the Prospectus describes, in all material respects, the attributes of the Common Shares of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificate, and the performance by the Corporation of its obligations under this Agreement, the Warrant Indenture and the Broker Warrant Certificate, and this Agreement, the Warrant Indenture and the Broker Warrant Certificate have been duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation, enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement and the Warrant Indenture may be limited by Applicable Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Preliminary Prospectus, the Final Prospectus, the U.S. Memorandum and any Supplementary Material and the filing of such documents, as applicable, under Canadian Securities Laws;
(f) the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificate and the performance by the Corporation of its obligations thereunder, including the issuance, sale and delivery of the Offered Securities, the issuance and delivery of the Compensation Securities and the grant of the Over- Allotment Option in accordance with this Agreement, the Warrant Indenture and the Broker Warrant Certificate, do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under
(i) constating documents of the Corporation, (ii) resolutions of the directors or shareholders of the Corporation, or (iii) the BCBCA;
(g) the Unit Shares and Corporate Finance Fee Shares have been validly issued as fully paid and non-assessable Common Shares;
(h) the Unit Warrants and the Corporate Finance Fee Warrants have been validly created and issued as warrants of the Corporation;
(i) the Broker Warrants have been validly created and issued as warrants of the Corporation;
(j) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares and Over-Allotment Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Corporation and, upon the exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares and Over-Allotment Warrants will be duly and validly created, authorized, issued and outstanding and the Over- Allotment Shares will be fully paid and non-assessable shares;
(k) the Warrant Shares, the Corporate Finance Fee Warrant Shares, the Over-Allotment Warrant Shares, the Broker Unit Shares and the Broker Unit Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, the Corporate Finance Fee Warrants, the Over- Allotment Warrants, the Broker Warrants and Broker Unit Warrants, as applicable, in accordance with their respective terms, the Warrant Shares, the Corporate Finance Fee Warrant Shares, the Over-Allotment Warrant Shares, the Broker Unit Shares and the Broker Unit Warrant Shares will be validly issued as fully paid and non-assessable Common Shares in the capital of the Corporation;
(l) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under Applicable Securities Laws in order to qualify the distribution of the Offered Securities and the Compensation Securities in the Qualifying Jurisdictions by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(m) the issuance of the Warrant Shares, the Corporate Finance Fee Warrant Shares, the Over-Allotment Warrant Shares and the Broker Unit Warrant Shares issuable upon exercise of the Unit Warrants, the Corporate Finance Fee Warrants, the Over-Allotment Warrants and the Broker Unit Warrants, respectively, will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(n) the issuance of the Broker Unit Shares issuable upon exercise of the Broker Warrants will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(o) the Corporation is a "reporting issuer" under Canadian Securities Laws in each of the Qualifying Jurisdictions and it is not listed as in default of applicable Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(p) the Unit Shares, the Warrants, the Warrant Shares, the Broker Unit Shares, the Broker Unit Warrants, the Broker Unit Warrant Shares, the Corporate Finance Fee Shares, the Corporate Finance Fee Warrants and the Corporate Finance Fee Warrant Shares have been approved for listing on the Exchange, subject to the Corporation fulfilling all of the requirements of the Exchange, including those set forth in any conditional approval letter of the Exchange;
(q) National Securities Administrators Ltd. has been duly appointed as registrar and transfer agent of the Common Shares and as warrant agent under the Warrant Indenture;
(r) subject to the limitations, qualifications and assumptions set out therein, the statements set forth in the Prospectus under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations", insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(s) the attributes of the Offered Securities and the Compensation Securities conform in all material respects with the description thereof contained in the Final Prospectus; and
(t) the form of Broker Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation, in form and substance acceptable to the Underwriter and its counsel, acting reasonably;
(2) the Underwriter receiving legal opinions from counsel to each Subsidiary (who may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials related to each Subsidiary), in form and substance acceptable to the Underwriter and its counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) such Subsidiaries having been incorporated and existing under the Applicable Laws of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and Business Assets and to conduct their Business as currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and having all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective Business as currently conducted;
(3) the Underwriter shall have received from their counsel, Torys LLP, a favourable legal opinion dated from regulatory counsel to the Closing DateCorporation, with respect to compliance with licensing and regulatory matters (including the possession, production, sale/provision, sending, transportation and delivery of psilocybin or psilocin) in Canada and Jamaica, in form and substance satisfactory to the DealersUnderwriter, acting reasonably, which opinion may be subject to usual and customary qualifications for opinions of this type, in form and content satisfactory to the Underwriter's counsel, acting reasonably;
(4) the Underwriter shall have received a favourable legal opinion U.S. regulatory counsel to the Corporation, with respect to such matters as to: (i) compliance with U.S. state cannabis licensing and regulatory matters; and (ii) legal status of CBD and Hemp-derived products produced, by the Dealers may reasonably require relating Corporation and its Subsidiaries, in form and substance satisfactory to the distribution Underwriter, acting reasonably, which opinion may be subject to usual and customary qualifications for opinions of this type, in form and content satisfactory to the Underwriter's’ counsel, acting reasonably;
(5) if any of the Notes to Offered Securities are offered or sold in the extent governed by United States or to, or for the laws of Albertaaccount or benefit of, Ontario or Québec.
(c) U.S. Persons, the Underwriter shall have received at the Closing Time of Closing, the Corporation will deliver to the Dealers a certificate customary and favourable legal opinion dated the Closing Date addressed in form and substance reasonably satisfactory to the Dealers Underwriter to the effect that no registration is required under the U.S. Securities Act in connection with the offer, sale and their counselresale of the Offered Securities, provided, in each case, that such offer, sale and resale and delivery of Offered Securities in the United States or to, or for the account or benefit of, U.S. Persons is made in compliance with this Agreement and the terms set out in Schedule "B" hereto and provided further that it is understood that no opinion is expressed as to any subsequent resale of any Offered Securities. In providing the foregoing opinion, such counsel may rely upon the covenants, representation and warranties of the Corporation and the Underwriter set forth in this Agreement and Schedule "B" hereto, and upon the covenants, representation and warranties of any purchasers in the United States;
(6) the Underwriter having received certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriter, acting reasonably, in form and substance satisfactory to the Underwriter, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option, the issuance and delivery of the Compensation Securities and the authorization of this Agreement, the Warrant Indenture, the Broker Warrant Certificate and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(7) the Underwriter receiving certificates of status and/or compliance, where issuable under Applicable Laws, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(8) the Underwriter receiving an auditors "bring down" comfort letter dated the Closing Date from the Corporation's Auditors, in form and substance satisfactory to the Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(9) the Underwriter receiving an auditors "bring down" comfort letter dated the Closing Date from the Former Auditor, in form and substance satisfactory to the Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(e) hereof;
(10) the Underwriter receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriter, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus
(A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.t
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 The obligations obligation of the Dealers hereunder are Underwriters to purchase the Underwritten Shares will be subject to the satisfaction of the following conditionsfollowing:
(a) the Underwriters having received at the Closing Time of Closing, a legal opinion addressed to the Corporation will cause its counsel, BlakeUnderwriters and their counsel dated and delivered the Closing Date from the Corporation’s Canadian Counsel, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Canada LLP, and from local counsel (in respect of matters governed by laws of the Qualifying Jurisdictions where the Corporation’s Canadian counsel is not qualified to deliver practice law), in each case in form and substance satisfactory to the Dealers Underwriters and their counsel, Torys LLPacting reasonably, a favourable legal opinion with respect to all the following matters, subject to such matters as reasonable assumptions and qualifications customary with respect to transactions of this nature:
(i) the Dealers may reasonably requestCorporation is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: to provinces of British Columbia, Alberta and Ontario and it is not listed as in default of any requirement of the existence Applicable Securities Laws in any of the provinces which maintain such a list;
(ii) the Corporation is a corporation validly existing under the laws of the Province of Ontario and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property and assets;
(iii) the authorized and issued and outstanding capital of the Corporation; ;
(iv) the creationrights, authorizationprivileges, issue restrictions and sale conditions attaching to the Securities are accurately summarized in all material respects in the Prospectus;
(v) the Underwritten Shares have been duly and validly authorized;
(vi) upon full payment therefor, the Underwritten Shares will have been validly issued as fully paid and non-assessable shares in the capital of the Notes; Corporation;
(vii) the authorization form and terms of the Trust Indenture; that definitive certificate representing the attributes Common Shares and the Broker Warrants have been approved by the directors of the Notes are consistent Corporation and comply in all material respects with the description thereof Business Corporations Act (Ontario) the articles and by-laws of the Corporation and the rules of the TSXV and the NYSE;
(viii) the Corporation has all necessary corporate power and capacity:
(i) to execute and deliver this Agreement and perform its obligations under this Agreement; and (ii) to issue and sell the Underwritten Shares;
(ix) the issuance of the Common Shares underlying the Broker Warrants to the Underwriters upon the due exercise of the Broker Warrants in accordance with their terms and conditions is exempt from the Term Sheets; that prospectus requirements under Applicable Securities Laws;
(x) the form first trade in, or resale of global certificate representing the Notes Common Shares issuable upon the exercise of the Broker Warrants is not subject to the prospectus requirements of the Applicable Securities Laws;
(xi) all necessary corporate action has been approved taken by the Corporation to authorize and complies with reserve for issuance the provisions Common Shares underlying the Broker Warrants and, upon due exercise of the Trust Indenture; that Broker Warrants and payment of the exercise price therefor in accordance with its terms, the Common Shares underlying the Broker Warrants will be validly issued as fully-paid and non-assessable Common Shares;
(xii) the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of all necessary corporate power and capacity: (A) to execute and deliver this Agreement, the Trust Indenture Agreement and the Notes; that the execution and delivery by the Corporation ofBroker Warrant certificates, and the performance by the Corporation of perform its obligations under this Agreement and the Trust IndentureBroker Warrant certificates, and (B) to issue and sell the Underwritten Shares;
(xiii) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus Amendment, the Final Prospectus and, if applicable, any Supplementary Material and the filing thereof with the Securities Commissions and to authorize the delivery of the U.S. Private Placement Memorandum;
(xiv) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the Broker Warrant certificates, this Agreement and the Broker Warrant certificates have been duly executed and delivered by the Corporation and this Agreement and the Broker Warrant certificates each constitute a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the issuance qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable laws;
(xv) the execution and delivery of this Agreement and the Broker Warrant certificates, the fulfillment of the Notesterms hereof by the Corporation and the offering, issuance, sale and delivery of the Underwritten Shares do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with any of (A) the terms, conditions or provisions of the constating documents articles or by-laws of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions resolutions of the CBCA and the Business Corporations Act shareholders or directors (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status or any committee thereof) of the Corporation or any applicable laws;
(xvi) the Transfer Agent is the duly appointed registrar and transfer agent for the Common Shares;
(xvii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained and all necessary requirements of Applicable Securities Law have been fulfilled to qualify the distribution of the Over-Allotment Option and the Underwritten Shares in each of the Qualifying Jurisdictions through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws; that laws;
(xviii) subject only to standard listing conditions, the Underwritten Shares and the Common Shares underlying the Broker Warrants, if and when issued, have been conditionally listed or approved for listing on the TSXV;
(xix) the Underwritten Shares and the Common Shares underlying the Broker Warrants, if and when issued, have been listed on the NYSE, subject only to official notice of issuance on the NYSE;
(xx) as to the accuracy of the statements in the Prospectus under the heading “Eligibility For Investment”;
(xxi) no consent, approval, authorization, consent order, registration or approval qualification of, or registrationfiling, filing registration or recording of the Trust Indenture with, any governmental court, regulatory body or regulatory authority government agency or body under any applicable statute or regulation of general application of the Province laws of Ontario or and the federal laws of Canada applicable therein is necessary in order to preserve or protect required for the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes consummation by the Corporation to purchasers in of the Offering Jurisdictions, in accordance with the terms and conditions of transactions contemplated by this Agreement, is, or will except for those which may be exempt from required and have been obtained under the prospectus requirements of Canadian Applicable Securities Laws and no prospectus will be requiredof Ontario; and
(xxii) as to all other legal matters reasonably requested by counsel to the Underwriters at least forty-eight (48) hours prior to the Closing Time. In connection with such opinion, no other document will be required counsel to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Underwritten Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements province in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practise and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) if any Underwritten Shares and Additional Shares, if applicable, are offered by the Underwriters through their U.S. Affiliates or a Selling Firm in transactions requiring an exemption from the registration requirements under the U.S. Securities Act, the Underwriters shall receive at the Closing Time of Closinga legal opinion addressed to the Underwriters and their counsel dated and delivered the Closing Date from the Corporation’s U.S. counsel, ▇▇▇▇▇▇ & Whitney LLP, in form and substance satisfactory to the Dealers will have received from Underwriters and their counsel, Torys LLPacting reasonably, to the effect that registration of the Underwritten Shares and the Additional Shares, if applicable, under the U.S. Securities Act is not required for the offer and sale of the Underwritten Shares and the Additional Shares, if applicable, in the United States in the manner contemplated by this Agreement;
(c) the Underwriters having received at the Closing Time favourable legal opinions addressed to the Underwriters and their counsel dated and delivered the Closing Date from foreign counsel in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, with respect to the Material Subsidiary relating to: (i) the due incorporation and good standing under the laws of the applicable jurisdiction and qualification to carry on business in such jurisdictions where the Material Subsidiary carries on business; (ii) the issued and outstanding share capital; (iii) the ownership of the issued and outstanding shares; and (iv) such other matters as the Underwriters may require, acting reasonably;
(d) the Underwriters having received at the Closing Time a favourable legal opinion addressed to the Underwriters and their counsel dated and delivered the Closing Date from DRC counsel in form and content acceptable to the Underwriters and their legal counsel, acting reasonably, relating to the title of the Ngayu Project and the North Kivu Project as well as the Corporation’s ability to conduct the activities it is presently and anticipated to be conducting in respect thereof;
(e) the Underwriters having received a certificate dated the Closing Date signed by the President and Chief Executive Officer and the Chief Financial Officer of the Corporation or any other senior officers of the Corporation, on behalf of the Corporation and not in his personal capacity, as may be acceptable to the Underwriters, acting reasonably, with respect to:
(i) the articles and by-laws of the Corporation;
(ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Underwritten Shares to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Corporation;
(f) the Corporation causing the Auditors to deliver to the Underwriters a comfort letter, dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two (2) Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letter referred to in Subsection 4.1(ii) hereof;
(g) the Corporation having delivered to the extent governed by the laws of AlbertaUnderwriters, Ontario or Québec.
(c) at the Time of ClosingClosing Time, the Corporation will deliver to the Dealers a certificate certificates dated the Closing Date addressed to the Dealers and their counsel, Underwriters and signed by the chief executive officer President and the chief financial officer Chief Executive Officer of the Corporation and the Chief Financial Officer of the Corporation, or such other officers senior officer(s) of the Corporation as may be acceptable to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (and without personal liability) that, after having made due enquiries:
(i) the Corporation has having complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are being true and correct in all material respects as of at the Time of Closing Time, with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) receipts having been issued by the Securities Commission in the Qualifying Jurisdictions for the Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares to be issued and sold by the Corporation has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;; and
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus (A) there has having been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation, and (B) no transaction having been entered into by any of the Corporation and or its Subsidiaries (taken Material Subsidiary which could reasonably be expected to have a Material Adverse Effect, other than as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the NotesProspectus; and
(xh) as the Underwriters shall have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the Underwritten Shares issuable by the Corporation to such other matters be (i) conditionally listed on the TSXV, subject only to the standard listing conditions, and (ii) listed on the NYSE, subject only to official notice of a factual nature as issuance on the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in factNYSE;
(di) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures Underwriters shall have been received duly executed and delivered by each of the Corporation and the Trust Company original Broker Warrant certificates in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(fj) evidence satisfactory the Underwriters shall have received a certificate from the Transfer Agent as to the Dealers that number of Common Shares issued and outstanding as at the Corporation’s board of directors has authorized and approved this Agreement and date immediately prior to the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretoClosing Date; and
(gk) all actions required to be taken by the Underwriters shall have received a certificate of status or on behalf the equivalent in respect of the Corporation and its Subsidiaries, as applicable, including subsidiaries issued by the passing of all requisite resolutions of appropriate regulatory authority in the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes jurisdiction in accordance with the provisions of this Agreement and the Trust Indenturewhich such entity is incorporated.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Underwriters to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use commercially reasonable efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Underwriters:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, Fasken ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, Underwriters a favourable legal opinion addressed to the Underwriters dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriters acting reasonably, with respect to all such matters the following matters:
(i) as to the Dealers may reasonably request, including, without limiting the generality incorporation and valid existence of the foregoing: Corporation and as to the existence and corporate capacity, power and capacity authority of the Corporation to carry out its obligations under this Agreement and to issue the Offered Securities;
(ii) that the Corporation is a reporting issuer in each of the Qualifying Jurisdictions that recognizes the concept of a reporting issuer and is not noted on a list maintained by the Canadian Securities Regulators as being in default under Securities Laws in the Qualifying Jurisdictions;
(iii) as to the authorized capital of the Corporation; ;
(iv) that the creationCorporation has all necessary corporate capacity and power under the Laws of Canada to carry on its business as presently carried on and to own, authorization, issue lease and sale operate its Assets and Properties;
(v) that all necessary corporate action has been taken by the Corporation to authorize the execution of the Notes; Prospectus Supplement and any Supplementary Material and the authorization filing thereof with the Canadian Securities Regulators;
(vi) that necessary corporate action has been taken by the Corporation to authorize the issuance of the Trust Indenture; Offered Securities and the Broker Warrants;
(vii) the Unit Shares have been validly issued as fully paid and non-assessable Common Shares;
(viii) that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has Warrants have been approved duly authorized by the Corporation and complies upon their issuance in accordance with the provisions terms of this Agreement and the Warrant Indenture, will constitute legally binding agreements of the Trust Corporation, enforceable in accordance with the terms of the Warrant Indenture; ;
(ix) that upon payment of the exercise price upon due exercise of the Warrants (including those issued in connection with the issue of Additional Warrants upon the exercise of the Over-Allotment Option) in accordance with the terms of the Warrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non-assessable shares of the Corporation;
(x) that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has Broker Warrants have been duly appointed authorized by the Corporation as and upon their issuance in accordance with the paying agent in respect terms of this Agreement and the Broker Warrant Certificates will constitute legally binding agreements of the Notes under Corporation, enforceable in accordance with the Trust Indenture; terms of the enforceability Broker Warrant Certificates;
(xi) that upon payment of this Agreementthe exercise price upon due exercise of the Broker Warrants (including those issued in connection with the issue of Additional Securities upon the exercise of the Over-Allotment Option) in accordance with the terms of the Broker Warrant Certificates, the Trust Indenture Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable shares of the Notes; Corporation;
(xii) that all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder and each of the Transaction Documents has been executed and delivered by the Corporation ofand constitute a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution may be limited by applicable law;
(xiii) that none of the execution and delivery of any of the Transaction Documents, the performance by the Corporation of its obligations under this Agreement and hereunder or thereunder nor the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Offered Securities to be issued and sold by the Corporation at the Closing Time will conflict with or result in any breach of the articles of incorporation or by-laws of the Corporation, any resolutions of the directors or shareholders of the Corporation or any applicable corporate Law or Securities Laws of the Qualifying Jurisdictions;
(xiv) that all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions have been obtained by the Corporation to purchasers qualify the distribution to the public of the Offered Securities in each of the Qualifying Jurisdictions through investment dealers who are duly registered under applicable Securities Laws and who have complied with the relevant provisions of applicable Securities Laws;
(xv) that the rights, privileges, restrictions and conditions attaching to the Offered Securities conform in all material respects to the descriptions thereof contained in the Offering JurisdictionsProspectus Supplement;
(xvi) that the statements set forth in the Prospectus Supplement under the caption “Eligibility for Investment” are accurate, subject to the limitations and qualifications set out therein;
(xvii) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under the Securities Laws in order to qualify the distribution of the Securities in each Qualifying Jurisdiction by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(xviii) the issuance of the Underlying Shares by the Corporation in the Qualifying Jurisdictions as and when such Underlying Shares are issued in connection with the due exercise of the Warrants and the due exercise of the Broker Warrants, respectively, each in accordance with the terms and conditions of this Agreementtheir respective terms, is, or will be is exempt from the prospectus requirements of Canadian the Securities Laws and no prospectus will be required, no or other document will be is required to be filed, no proceeding will be proceedings are required to be taken and no approvalapprovals, permitpermits, consent, order, consents or authorization authorizations of any regulatory authority will be the Canadian Securities Regulators of the Qualifying Jurisdiction are required to be obtained by the Corporation under Canadian the Securities Laws to issue permit such issuance of the Underlying Shares;
(xix) the first trade in each Qualifying Jurisdictions of the Underlying Shares acquired upon the due exercise of the Warrants or the due exercise of the Broker Warrants, respectively, each in accordance with their respective terms, will not be subject to the prospectus requirements of the Securities Laws and deliver no prospectus or other document is required to be filed, no proceedings are required to be taken and no approvals, permits, consents or authorizations of the Notes Canadian Securities Regulators of the Qualifying Jurisdictions are required to be obtained by the Corporation under the Securities Laws to permit such purchasers, other than first trade of the filing of Underlying Shares; provided that: (A) such first trade is not a Form “control distribution” (as defined in National Instrument 45-106F1 prescribed 102 – Resale of Securities) at the time of such first trade; (B) the Corporation is a reporting issuer (as defined under NI 45-106 within 10 days after applicable Securities Laws) at the date time of issue such first trade; and (C) such first trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution (as defined under applicable Securities Laws); and further provided that such first trade is by or through dealers who are duly registered under the Securities Laws who have complied with the relevant provisions of such laws and the terms and conditions of their registrations; and
(xx) that (i) Odyssey Trust Company has been appointed the transfer agent and registrar in respect of the Notes Common Shares; and (ii) Odyssey Trust Company has been appointed) the payment of any fees related theretoWarrant Agent under the Warrant Indenture. It is understood that In connection with such opinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them the Underwriters, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada the province in which they are qualified to practise and may rely, to the Provinces extent appropriate in the circumstances, as to matters of Ontariofact on certificates of officers of the Corporation and others;
(b) the Underwriters receiving at the Closing Time on the Closing Date, Québec, British Columbia and Alberta, (or alternatively make arrangements a legal opinion to have such opinions of local counsel directly be addressed to the Dealers)Underwriters, in form and substance acceptable to the Underwriters, acting reasonably, from counsel to the Subsidiaries (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers), that: (i) each of the Corporation.Subsidiaries is a corporation existing under the laws of its jurisdiction of organization, and has all requisite corporate capacity, power and authority to carry on its business as now conducted and to own, lease and operate its Assets and Properties; and (ii) all of the issued and outstanding shares of capital of each of the Subsidiaries are registered in the name of the Corporation or another Subsidiary, of which 50% of the issued and outstanding shares are registered in the name of the Corporation or another Subsidiary;
(bc) at the Time of Closing, the Dealers Underwriters will have received a regulatory opinion from the Corporation’s regulatory counsel that the Corporation and the Subsidiaries are in compliance with applicable state cannabis laws addressed to the Underwriters, such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, Torys LLPacting reasonably;
(d) if any Offered Securities are sold in the United States, or to or for the account or benefit of, persons in the United States or U.S. Persons, as part of the Offering, the Underwriters receiving, at the Closing Time on the Closing Date, a legal opinion dated the Closing Date, to be addressed to the Underwriters, in form and substance acceptable to the Underwriters, acting reasonably, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special United States legal counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of the Corporation), to the effect that the offer and sale in the United States of the Offered Securities in the Offering is not required to be registered under the U.S. Securities Act if made in accordance with Schedule “A” to this Agreement, it being understood that no opinion is expressed as to any subsequent resales of any of the Offered Securities;
(e) the Underwriters will have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Underwriters may agree, certifying for and on behalf of the Corporation and without personal liability, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles of incorporation and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Securities to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein and the issue and sale of Units to be issued in connection with the Concurrent Private Placement; and (iii) the incumbency and signatures of signing officers of the Corporation;
(f) the Underwriters will have received the “long form” comfort letter delivered pursuant to subsection 5(a)(iii) and the Corporation will cause the Corporation’s Auditors to deliver to the Underwriters a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed the information contained in the comfort letters referred to in subsection 5(a)(iii) hereof;
(g) the Dealers and their counselUnderwriters will have received a certificate, and dated as of the Closing Date, signed by the chief executive officer and the chief financial officer Chief Executive Officer or Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as the Underwriters may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (and without personal liability) , to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Prospectus Supplement and any Supplementary Material, that:
(i) the Corporation has complied in all respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein in this Agreement and any certificate of the Corporation delivered hereunder are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification, in all respects) as of at the Time of Closing Time, with the same force and effect as if made on and as at the Time of Closing Time, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyby this Agreement;
(iii) the Corporation has filed the Prospectus Supplement and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws of the Qualifying Jurisdictions or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus Supplement:
(A) there has been no material adverse changechange (actual, anticipated, contemplated, threatened, financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), business, affairs, operations, prospects, capital or prospects control of the Corporation and its Subsidiaries (taken as a whole), ; and (B) no transaction has been entered into by either the Corporation or any development involving a prospective of its Subsidiaries which is material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of to the Corporation and its Subsidiaries (taken on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Prospectus Supplement or the Disclosure Materials (Supplementary Material, as they existed at the respective dates thereof);case may be; and
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed with Canadian Securities Regulators forming Prospectus Supplement which fact or change is, or may be, of such a nature as to render any statement in the Corporation’s Information Record contained Prospectus Supplement misleading or untrue in any material respect or which would result in a misrepresentation as at in the time Prospectus Supplement or which would result in the relevant document was filed that has Prospectus Supplement not since been correctedcomplying with applicable Securities Laws;
(vih) the Acquisition has not been terminated all consents, approvals, permits, authorizations or amended in any material respect, no material provision has been waived filings as may be required to be made or obtained by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated under applicable Securities Laws in the 2.7 Announcement, Qualifying Jurisdictions and the Corporation has no reason to believe that United States necessary for the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation offer and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms sale of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable)Offered Securities, the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” execution and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions delivery of this Agreement and the Trust Indenture.consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under applicable Securities Laws in the Qualifying Jurisdictions and the United States within the prescribed time periods and the fi
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. (1) The obligations of the Dealers hereunder Underwriters under this Agreement are subject to the satisfaction accuracy of the following conditionsrepresentations and warranties of the Corporation contained in this Agreement both as of the date of this Agreement, the Closing Time, the performance by the Corporation of its obligations under this Agreement and receipt by the Underwriters, at the Closing Time, of:
(a) at a favourable legal opinion, dated the Time of ClosingClosing Date, from ▇▇▇▇▇▇ LLP, the Corporation will cause its Corporation’s Canadian counsel, Blakeas to matters of Canadian federal and provincial law (who may rely on the opinions of local counsel acceptable to them and to the Underwriters’ counsel as to matters governed by the laws of jurisdictions in Canada other than the Provinces of British Columbia), ▇addressed to the Underwriters and the Underwriters’ counsel, such matters to be as set out in the attached Schedule “A” subject to customary limitations, assumptions and qualifications;
(b) a favourable legal opinion, dated the Closing Date, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their Corporation’s U.S. counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may relyUnderwriters, to the extent appropriate effect set forth in Schedule “B” (subject to customary limitations, assumptions and qualifications), which shall be accompanied by a negative assurance letter addressed to the circumstances, as to matters of fact, on certificates of an officer of the Corporation.Underwriters in customary form;
(bc) at the Time of Closinga negative assurance letter, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, the Underwriters’ U.S. counsel, addressed to the Underwriters (subject to customary limitations, assumptions and qualifications), in customary form;
(d) a favorable legal opinion, dated the Closing Date, from ▇▇▇▇▇▇, the Corporation’s Australian counsel, addressed to the Underwriters, to the effect that (a) no prospectus is required under Australian Securities Laws in connection with the Common Shares (or CDIs in respect of such Common Shares) offered and sold in Australia pursuant to the Concurrent Australian Offering;
(e) a favourable legal opinion, dated the Closing Date, from MLT ▇▇▇▇▇▇ LLP, the Corporation’s counsel, in form and substance satisfactory to the DealersUnderwriters, with respect to Corporation’s right to and ownership of the Material Properties;
(f) certificates or evidence of registration representing, in the aggregate, the Offered Shares in the name of CDS or its nominee or in such matters other name(s) as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Underwriters shall have directed;
(cg) at the Time of Closing, the Corporation will deliver to the Dealers a certificate auditor’s comfort letter dated the Closing Date addressed Date, updating the comfort letter referred to in Section 6(4) above with such changes as may be necessary from the comfort letter delivered previously to bring the information therein forward to a date which is within two Business Days of the Closing Date;
(h) the Underwriting Fee paid in accordance with the eighth paragraph of this Agreement;
(i) evidence satisfactory to the Dealers Underwriters that the Offered Shares shall have been (A) listed and their counseladmitted and authorized for trading on the NYSE, and (B) conditionally approved for listing on the TSX, subject only to customary listing conditions;
(j) a certificate, dated the Closing Date, and signed on behalf of the Corporation, but without personal liability, by the chief executive officer President and Chief Executive Officer and by the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as may be reasonably acceptable to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (without personal liability) that:
: (i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part hereof to be complied with and satisfied by the Corporation at or prior to the Time of Closing;
Closing Time; (ii) all the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Closing Time of Closing with the same force and effect as if made at and as of the Time of Closing Time, after giving effect to the transactions contemplated hereby; (iii) the Corporation is a “reporting issuer” or its equivalent under the securities laws of each of the Qualifying Jurisdictions and eligible to use the Short Form Prospectus System under NI 44-101; (iv) there has been no material change relating to the Corporation and its Subsidiaries, on a consolidated basis, since the date hereof which has not been generally disclosed, except for representations the offering of the Offered Shares, and warranties with respect to which are the requisite material change statement or report has not been filed and no such disclosure has been made as on a confidential basis; and (v) that, to the best of a specific date other than the Closing Dateknowledge, in which case they will be true information and correct in all material respects as belief of that date only;
(iii) the persons signing such certificate, after having made reasonable inquiries, no order, ruling or determination having the effect of ceasing the trading or suspending trading in the sale Common Shares or any other securities of the Notes Corporation has been issued and no proceedings for such purpose have been instituted are pending or are pending or, to the best of the knowledge of such officers, contemplated or threatened;
(ivk) since at the respective dates Closing Time, certificates dated the Closing Date signed on behalf of the Disclosure MaterialsCorporation, there has been no material adverse changebut without personal liability, financial or otherwise, in by the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects Chief Executive Officer of the Corporation and its Subsidiaries (taken as a whole)or another officer acceptable to the Underwriters, or any development involving a prospective material adverse change, financial or otherwiseacting reasonably, in form and content satisfactory to the business affairsUnderwriters, operationsacting reasonably, assets, liabilities (contingent or otherwise) or capital with respect to the constating documents of the Corporation; the resolutions of the directors of the Corporation relevant to the Offering, including the allotment, issue (or reservation for issue) and its Subsidiaries sale of the Offered Shares, the authorization of this Agreement, the listing of the Offered Shares on the TSX and NYSE and transactions contemplated by this Agreement; and the incumbency and signatures of signing officers of the Corporation;
(taken as a whole)l) at the Closing Time, from that disclosed in the Corporation’s Information Record or directors and officers shall each have entered into lock-up agreements, substantially in the Disclosure Materials (form attached hereto as they existed at the respective dates thereof)Schedule “C”;
(vm) none at the Closing Time, a certificate of status (or equivalent) for the Corporation dated within one (1) Business Day (or such earlier or later date as the Underwriters may accept) of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(xn) as to such other matters of a factual nature documents as the Dealers and Underwriters or counsel to the Dealers’ counsel Underwriters may reasonably requestrequire; and such statements all proceedings taken by the Corporation in connection with the issuance and sale of the Offered Shares shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company satisfactory in form and substance satisfactory to the DealersUnderwriters and counsel for the Underwriters, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Conditions of Closing. The obligations of Underwriters’ obligation to purchase the Dealers hereunder are Subscription Receipts pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver legal counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local legal counsel acceptable to them legal counsel to the Underwriters as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents and to issue and sell the Subscription Receipts, the Special Warrants and the Underlying Shares, as applicable;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and the Transaction Documents have been duly executed and delivered by the Corporation and each constitute a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions, limitations and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and a limitation that no opinion is expressed as to the enforceability of the rights of indemnity, contribution or waiver of contribution set forth in this Agreement;
(e) the execution and delivery of the Transaction Documents and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Subscription Receipts, Special Warrants and Underlying Shares does not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles or articles of the Corporation, any resolutions of the shareholders or directors of the Corporation, or the British Columbia Business Corporations Act or Canadian Securities Laws;
(f) that the Subscription Receipts have been validly created, executed and issued by the Corporation and constitute valid and binding obligations of the Corporation enforceable against it in accordance with their terms;
(g) that the Special Warrants will, upon issuance pursuant to the conversion of the Subscription Receipts, be validly created, executed and issued by the Corporation and constitute valid and binding obligations of the Corporation enforceable against it in accordance with their terms;
(h) that the Underlying Shares have been duly authorized and validly allotted for issuance by the Corporation and, when issued in accordance with the terms of the Special Warrants, will be outstanding as fully paid and non-assessable shares in the capital of the Corporation;
(i) assuming that each of the Purchasers residing in the Qualifying Jurisdictions is an “accredited investor” as such term is defined in NI 45-106 and is purchasing as principal, that the issuance and sale by the Company of the Subscription Receipts to such Purchasers are exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed (other than specified forms accompanied by requisite filing fees), proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws to permit such issuance and sale; and that the issuance of the Special Warrants upon the conversion of the Subscription Receipts and the issuance of the Underlying Shares upon the exercise or deemed exercise of the Special Warrants will be exempt from the prospectus requirements of applicable Canadian Securities Laws, and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws to permit such issuances;
(j) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws in connection with the first trade of the Special Warrants or the Underlying Shares provided that four months have lapsed since the Closing Date and subject to the standard assumptions and qualifications;
(k) that if a Qualification Prospectus qualifying the distribution of the Underlying Shares is filed before the Deemed Exercise Date: (A) such Underlying Shares would not be subject to any statutory hold period or restricted period under the applicable Canadian Securities Laws, and (B) no documents would be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws in order to permit the first trade of such Underlying Shares in the Qualifying Jurisdictions, subject to the standard assumptions and qualifications;
(l) The Subscription Receipts, the Special Warrants (upon the due conversion of the Subscription Receipts) and Underlying Shares (upon the due conversion of the Special Warrants) would if issued on the date hereof be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered retirement income funds, registered disability savings plans, deferred profit sharing plans, registered education savings plans and tax-free savings accounts, each as defined in the Tax Act, if and provided that at all material times (i) the Underlying Shares are listed on a ‘‘designated stock exchange’’ for purposes of the Tax Act (which currently includes the TSX), and (ii) in the case of the Subscription Receipts and the Special Warrants, the Corporation is not a “connected person” (as defined in the Tax Act) under the governing plan of the Trust;
(m) subject only to the standard listing conditions and the requirements set forth in the conditional approval letters of the TSX and NASDAQ, the Underlying Shares have been conditionally listed or approved for listing on the TSX and NASDAQ; and
(n) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing, in a form acceptable to the Dealers will have received from Co-Lead Underwriters and their legal counsel, Torys LLPacting reasonably.
(2) if any Subscription Agreements are sold to Purchasers in the United States, the Co-Lead Underwriters receiving at the Time of Closing a favourable legal opinion dated addressed to the Closing DateCo-Lead Underwriters, in form and substance satisfactory to the DealersCo-Lead Underwriters, with respect to such matters acting reasonably, dated as of the Dealers may reasonably require relating Closing Date, from ▇▇▇▇▇▇▇▇ LLP, to the distribution effect that registration of (i) the Subscription Receipts upon offer and sale pursuant to this Agreement, including Schedule “A” hereto, (ii) the issuance of the Notes to Special Warrants upon conversion of the extent governed by Subscription Receipts; and (iii) the laws issuance of Alberta, Ontario the Underlying Shares upon exercise or Québec.deemed exercise of the Special Warrants will not be required under the U.S. Securities Act;
(c3) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersCo-Lead Underwriters, acting reasonably, in form and content satisfactory to the Co-Lead Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Qualification Prospectus, the sale of the Subscription Receipts and, as applicable, the authorization of the Transaction Documents and the transactions contemplated therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one (1) Business Day prior to the Closing Date;
(5) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Co-Lead Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Subscription Receipts or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Public Disclosure Documents;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Public Disclosure Documents which fact or change is, or may be, of such a nature as to render any statement in the Public Disclosure Documents misleading or untrue in any material respect or which would result in a misrepresentation in the Public Disclosure Documents or which would result in the Public Disclosure Documents not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture Transaction Documents on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby;
(6) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(6) of this Agreement;
(7) the Underwriters receiving, except for representations at the Time of Closing, a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific business day on the date other than prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) 8) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Subscription Receipts or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSX or NASDAQ;
(iv9) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materialsapproval (or conditional approval) of the listing and posting for trading of the Underlying Shares on the TSX and NASDAQ, there has been no material adverse change, financial or otherwise, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional listing approval letters of the Corporation TSX and its Subsidiaries (taken NASDAQ, as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)applicable;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi10) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Closing;
(i11) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii12) createthe Underwriters having received at the Time of Closing such further certificates, issue opinions of legal counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions Underwriters or their legal counsel shall request any such certificate or document within a reasonable period prior to the Time of this Agreement Closing that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Merus Labs International Inc.)
Conditions of Closing. The obligations of the Dealers Agents hereunder are with respect to the Offering will be subject to the completion by the Agents of a due diligence review satisfactory to the Agents in their sole judgment and to the satisfaction (or waiver by the Agents in their sole discretion) of the following additional conditions, as applicable, which conditions the Company covenants to exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Time:
(a) the Agents will receive at the Closing Time of Closing, a legal opinion addressed to the Corporation will cause its Agents and their counsel dated and delivered on the Closing Date from the Company’s Canadian counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Stikeman Elliott LLP, and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to deliver practice), in each case in form and substance satisfactory to the Dealers Agents and their counsel, Torys LLPacting reasonably, a favourable legal opinion with respect to all the following matters, subject to such matters reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Agents’ counsel:
(i) the Dealers may reasonably requestCompany is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and existing under the laws of the Province of British Columbia, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the existence authorized and issued and outstanding capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Debentures and the Underlying Shares are accurately summarized in all material respects in the Prospectus;
(v) the Debentures and the maximum number of Underlying Shares issuable upon conversion of the Debentures are conditionally approved for listing on the TSX;
(vi) the Debentures have been validly created and issued and are legal, valid, binding and enforceable obligations of the Company in accordance with their terms;
(vii) the Underlying Shares issuable upon conversion, prepayment or maturity of the Debentures will, upon issuance in accordance with the terms of the Debenture Indenture, be issued as fully paid and non-assessable shares of the Company;
(viii) the Company has all necessary corporate power and capacity capacity: (i) to execute and deliver this Agreement and the other Transaction Documents and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Offered Securities; and (iii) to issue and deliver the Underlying Shares issuable upon conversion, prepayment or maturity of the Corporation; Debentures;
(ix) all necessary corporate action has been taken by the creationCompany to authorize the execution and delivery of each of the Preliminary Prospectus, authorizationthe Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(x) the Company has duly authorized, executed and delivered, this Agreement and the other Transaction Documents and authorized the performance of its obligations hereunder, including the offering, issue, sale and delivery of the Debentures and the issue and sale delivery of the Notes; the authorization Underlying Shares upon conversion, prepayment or maturity of the Trust Indenture; that Debentures, and this Agreement and the attributes other Transaction Documents each constitute a legal, valid and binding obligation of the Notes Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are consistent customary of an offering of this nature;
(xi) the execution and delivery of this Agreement and the other Transaction Documents and the fulfillment of the terms hereof and thereof, the offering, issue, sale and delivery of the Debentures, the issue and delivery of the Underlying Shares upon conversion, prepayment or maturity of the Debentures, and the consummation of the transactions contemplated by this Agreement, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the notice of articles and articles of incorporation or amalgamation, as applicable, of the Company, (ii) resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (iii) the laws of the Province of British Columbia and the federal laws of Canada applicable therein, or (iv) the Credit Facility or the Outstanding Debenture;
(xii) the form and terms of the definitive certificates representing the Common Shares have been approved by the directors of the Company and comply in all material respects with the description thereof in BCBCA, the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation articles and complies with the provisions by-laws of the Company and the rules of the TSX;
(xiii) Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the Common Shares;
(xiv) Computershare Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City Company of Toronto, Canada has been duly appointed by the Corporation as the paying transfer agent in respect and registrar for the Debentures and as Debenture Trustee under the Debenture Indenture;
(xv) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation ofappropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the performance by distribution of the Corporation Offered Securities in each of its obligations the Qualifying Jurisdictions through dealers who are registered under this Agreement Applicable Securities Laws and who have complied with the Trust Indenture, including relevant provisions of such Applicable Laws;
(xvi) the issuance of Underlying Shares by the NotesCompany on conversion, do not and will not result in a breach of any of (A) the provisions prepayment or maturity of the constating documents Debentures to holders of the Corporation, or (B) any law of general application applicable Debentures in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Qualifying Jurisdictions, in accordance with the terms and conditions of this AgreementDebenture Indenture, is, or will be is exempt from the prospectus requirements of Canadian Applicable Securities Laws and no prospectus will be required, no is required nor are other document will be documents required to be filed, no proceeding proceedings are required to be taken, and no approvals, permits, consents or authorizations of the Securities Commissions are required to be obtained by the Company under such Applicable Securities Laws to permit such issuance of Underlying Shares by the Company;
(xvii) the first trade in the Underlying Shares acquired upon conversion, prepayment or maturity of the Debentures will not be subject to the prospectus requirements of Applicable Securities Laws and no prospectus or other document is required to be filed, no proceedings are required to be taken and no approvalapprovals, permitpermits, consent, order, consents or authorization authorizations of any regulatory authority will be the Securities Commissions are required to be obtained by the Company under Canadian the Applicable Securities Laws to issue and deliver permit the Notes to first trade of such purchasersUnderlying Shares by the holder thereof through dealers registered in the appropriate category under the Applicable Securities Laws of such Qualifying Jurisdictions who have complied with such laws, other than or in circumstances in which there is an exemption from the filing registration requirements under Applicable Securities Laws, provided that:
(I) the trade is not a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities);
(II) the Company is a “reporting issuer” at the time of the trade; and
(III) the sale is not a transaction or one of a Form 45-106F1 prescribed series of transactions involving further purchases and sales in the course of or incidental to a distribution;
(xviii) subject only to the Standard Listing Conditions, the Debentures and the Underlying Shares have been conditionally listed or approved for listing on the TSX;
(xix) the statements in the Prospectus under NI 45-106 within 10 days after the heading “Eligibility for Investment”, accurately summarize such law applicable to the Debentures and the Underlying Shares issuable upon the conversion, prepayment or maturity of the Debentures;
(xx) the statements in the Prospectus under the heading “Certain Canadian Federal Income Tax Considerations”, provide a fair and adequate summary of the principal Canadian federal income tax provisions under the Income Tax Act (Canada) that generally apply to a holder of Debentures who acquires Debentures under the Offering contemplated in the Prospectus, and Underlying Shares, subject to the qualifications, limitations and understandings set out in such summary;
(xxi) based on the current provisions of the Income Tax Act (Canada), provided that the Common Shares are listed on a designated stock exchange in Canada (which currently includes the TSX), the Debentures offered pursuant to the Prospectus and the Common Shares issued on the conversion, prepayment or maturity of the Debentures, in all cases if issued on the date of issue and sale hereof, would be qualified investments under the Income Tax Act (Canada) for a trust governed by a registered retirement savings plan, registered retirement income fund, deferred profit sharing plan (except, in the case of the Notes and Debentures, a deferred profit sharing plan to which the payment of any fees related theretoCompany, or an employer that does not deal at arm's length with the Company, has made a contribution), registered education savings plan, registered disability savings plan or tax-free savings account, each as defined in the Income Tax Act (Canada), and
(xxii) as to all other legal matters reasonably requested by counsel to the Agents at least two Business Days prior to the Closing Time. It is understood that In connection with such counsel opinion, Stikeman Elliott LLP may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them counsel to the Agents, acting reasonably, as to the qualification for distribution of the Offered Securities or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (province or alternatively make arrangements provinces in which Stikeman Elliott LLP are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, circumstances but only as to matters of fact, on certificates of an officer officers of the Corporation.Company and others;
(b) at the Time Agents shall have received opinions of Closingcounsel in each jurisdiction which governs the validity, attachment, perfection, effect of perfection or of non-perfection, or priority of any personal property Collateral in which the Company has an interest (which counsel shall be reasonably satisfactory to the Agents) with respect to the creation, attachment, validity and perfection of the Liens in favour of the Debenture Trustee, for the benefit of itself and the holders of Debentures, in such personal property Collateral in form and substance reasonably satisfactory to the Agent and the Debenture Trustee;
(c) the Agents shall have received legal opinions from legal counsel to, and duly qualified to practice law in the jurisdiction of existence of, each Material Subsidiary, addressed to the Agents and legal counsel to the Agents with respect to: (i) the existence of each Material Subsidiary; (ii) the issued and outstanding securities of each Material Subsidiary and the securities thereof held by the Company or a Subsidiary; (iii) all actions required to be taken by such Material Subsidiary consequent on a realization under the Security Documents have been taken; and (iv) the corporate power and capacity of each Material Subsidiary to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable to the Agents and their legal counsel, acting reasonably;
(d) the Agents shall have received a certificate dated the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agents, in form and content satisfactory to the Agents’ counsel, acting reasonably, with respect to:
(i) the notice of articles and articles and by laws of the Company;
(ii) resolutions of the Company’s board of directors relevant to, among other things, the Dealers will issue and sale of the Offered Securities to be issued and sold by the Company and the authorization of this Agreement and the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(e) the Agents shall have received from their counsela certificate of status or the equivalent dated within one Business Day of the Closing Date, Torys LLPin respect of the Company and each Material Subsidiary;
(f) the Company shall cause its current auditors to deliver to the Agents a “bring down” comfort letter, a legal opinion addressed to the Agents and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the DealersAgents, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letters referred to the extent governed by the laws of Alberta, Ontario or Québec.in Section 5(a)(iii) hereof;
(cg) at the Time of Closing, the Corporation will Company shall deliver to the Dealers a certificate Agents, at the Closing Time, certificates dated the Closing Date addressed to the Dealers and their counsel, Agents and signed by the chief executive officer Chief Executive Officer of the Company and the chief financial officer Chief Financial Officer of the Corporation Company, or such other officers senior officer(s) of the Corporation Company as may be acceptable to the Dealers, acting reasonablyAgents, certifying for and on behalf of the Corporation (Company and without personal liability) , to the effect that:
(i) the Corporation Company has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation Company contained herein are true and correct in all material respects (except for those that are qualified by materiality or Material Adverse Effect which shall be true and correct in all respects) as of at the Closing Time of Closing with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or other securities of the Company, or the Offered Securities to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus or any Supplementary Material (A) there has been no material adverse change, change (financial or otherwise, ) in the business, assets (including intangible assets), affairs, operations, assets, liabilities (contingent or otherwise), capital capital, properties, condition (financial or prospects otherwise) or results of operations or control of the Corporation Company and its the Subsidiaries (taken as a whole), and (B) no transaction has been entered into by the Company or any development involving a prospective Subsidiary which is material adverse change, financial or otherwise, in to the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of Company and the Corporation and its Subsidiaries (taken as a whole), from that other than as disclosed in the Corporation’s Information Record Prospectus or the Disclosure Materials (as they existed at the respective dates thereof);in any Supplementary Material; and
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed with Canadian Securities Regulators forming Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Corporation’s Information Record contained Prospectus misleading or untrue in any material respect or which would result in a misrepresentation as at in the time Prospectus or which would result in the relevant document was filed that has Prospectus not since been correctedcomplying with Applicable Securities Laws;
(vih) the Acquisition Agents shall have received copies of correspondence indicating that the Company has not been terminated or amended in any material respectobtained all necessary approvals for the issuance of the Debentures and the Underlying Shares to be listed on the TSX, no material provision has been waived by the Corporation and no event has occurred or condition exists which, subject only to the Corporation’s Knowledge, Standard Listing Conditions;
(i) the representations and warranties of the Company contained in this Agreement will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially be true and correct in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe (except for those that the Acquisition will not be completed in accordance with the 2.7 Announcement on are qualified by materiality or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited Material Adverse Effect which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true and correct in fact;
(dall respects) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each as of the Corporation Closing Time on the Closing Date, as if such representations and the Trust Company in form warranties were made at and substance satisfactory to the Dealersas of such time and all agreements, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized covenants and approved conditions required by this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken performed, complied with or satisfied by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred Company at or prior to the Closing Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.on
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriter to purchase the Initial Shares at the Closing Time on the Closing Date and to purchase any Additional Shares at the Closing Time on an Option Closing Date shall be subject to the satisfaction of the following conditionsfollowing:
(a) the Underwriter will receive at the Closing Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver a legal opinion addressed to the Dealers Underwriter and their counsel dated and delivered on the Closing Date from the Company’s Canadian counsel, Torys LLP, a favourable legal opinion and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Underwriter and their counsel, acting reasonably, with respect to all the following matters, subject to such matters reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriter’s counsel:
(i) the Dealers may reasonably requestCompany is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Jurisdictions and it is not listed as being in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the federal laws of Canada, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the existence authorized, and corporate power issued and capacity outstanding, capital of the Corporation; Company;
(iv) the creationrights, authorizationprivileges, issue restrictions and sale of conditions attaching to the Notes; the authorization of the Trust Indenture; that the attributes of the Notes Offered Shares are consistent accurately summarized in all material respects with the description thereof in the Term SheetsProspectus;
(v) the Initial Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable Common Shares;
(vi) the Additional Shares issuable upon the exercise of the Over-Allotment Option have been duly and validly allotted and reserved for issuance by the Company and, upon the valid exercise of the Over-Allotment Option and receipt by the Company of payment in full therefor, the Additional Shares will be duly and validly authorized and issued and will be outstanding as fully paid and non-assessable Common Shares;
(vii) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and to perform its obligations under this Agreement; that (ii) to offer, issue, sell and deliver the form Initial Shares; and (iii) to offer, issue, sell and deliver the Additional Shares issuable upon exercise of global certificate representing the Notes Over-Allotment Option;
(viii) all necessary corporate action has been approved taken by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that Company to authorize the execution and delivery by of each of the Corporation ofPreliminary Base Shelf Prospectus, the Final Base Shelf Prospectus, the Prospectus Supplement and any Supplementary Material and the filing thereof in each of the Qualifying Jurisdictions;
(ix) the Company has duly authorized, executed and delivered, this Agreement and authorized the performance by the Corporation of its obligations hereunder, including the offering, issue, sale and delivery of the Initial Shares, the grant of the Over-Allotment Option, the offering, issue, sale and delivery of the Additional Shares upon the valid exercise of the Over-Allotment Option and receipt by the Company of payment in full therefor, and this Agreement constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, being available only in the discretion of the applicable court; (iii) the applicable laws regarding limitations of actions; (iv) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under Applicable Law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; (v) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under Applicable Law; and (vi) the rights to indemnity, contribution and waiver under the documents which may be limited or unavailable under Applicable Law;
(x) the execution and delivery of this Agreement and the Trust Indenture, including the issuance fulfillment of the Notesterms hereof, the offering, issue, sale and delivery of the Initial Shares, the grant of the Over-Allotment Option, the offering, issue, sale and delivery of the Additional Shares upon the valid exercise of the Over-Allotment Option and receipt by the Company of payment in full therefor, and the consummation of the transactions contemplated by this Agreement, do not and will not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of (A) the terms, conditions or provisions of the constating documents articles of incorporation or amalgamation, as applicable, and by-laws of the CorporationCompany, (ii) resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (Biii) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application laws of the Province of Ontario or and the federal laws of Canada applicable therein therein;
(xi) Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the Common Shares;
(xii) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to preserve or protect qualify the validity or enforceability distribution of the Trust Indenture; Initial Shares and that the offering, issuance, sale and delivery Additional Shares in each of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and no prospectus will be required, no other document will be required who have complied with the relevant provisions of such Applicable Laws;
(xiii) the Initial Shares and Additional Shares have been conditionally listed or approved for listing on the TSX subject only to be filed, no proceeding will be required the Standard Listing Conditions;
(xiv) as to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale accuracy of the Notes and statements under the payment of any fees related theretoheading “Eligibility for Investment” in the Prospectus; and
(xv) as to all other legal matters reasonably requested by counsel to the Underwriter. It is understood that In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them counsel to the Underwriter, acting reasonably, as to the qualification for distribution of the Offered Shares or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (province or alternatively make arrangements provinces in which the Company’s Canadian counsel are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, circumstances but only as to matters of fact, on certificates of an officer officers of the Corporation.Company and others;
(b) at the Time Underwriter shall have received legal opinions from legal counsel to, and duly qualified to practice law in the jurisdiction of Closingexistence of, each wholly-owned Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.) addressed to the Underwriter and legal counsel to the Underwriter and based upon an officer’s certificate for each such Material Subsidiary with respect to: (i) the existence of each such Material Subsidiary; and (ii) the corporate power and capacity of each such Material Subsidiary to carry on its business and activities and to own and lease its property and assets;
(c) the Underwriter shall have received a favourable legal opinion, in form and substance satisfactory to the Underwriter, acting reasonably, from the U.S. counsel to the Company, to the effect that:
(i) assuming the compliance of the U.S. Prospectus, including the documents incorporated by reference therein, with the requirements of the applicable Canadian securities laws and any other applicable Canadian law, each of the Registration Statement and the U.S. Prospectus (other than (i) the financial statements, including the notes thereto, schedules, and other financial, statistical and accounting data contained therein or omitted therefrom and (ii) the documents incorporated or deemed to be incorporated by reference therein, as to which such counsel need express no opinion) appeared on its face to be appropriately responsive as to form in all material respects with the applicable requirements of the U.S. Securities Act and the rules and regulations thereunder; and
(ii) no consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority of the United States, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required on the part of the Company under U.S. Securities Laws for the issuance or sale of the Offered Shares or the performance by the Company of its obligations under this Agreement, except such as have been obtained, taken or made;
(d) the Underwriter shall have received a certificate dated the Closing Date, signed by the Chief Executive Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Underwriter, in form and content satisfactory to the Underwriter’s counsel, acting reasonably, with respect to:
(i) the articles and by laws of the Company;
(ii) resolutions of the Company’s board of directors relevant to, among other things, the Dealers will issue and sale of the Offered Shares to be issued and sold by the Company and the authorization of this Agreement and the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(e) the Underwriter shall have received from their counsela certificate of status or the equivalent dated within one Business Day of the Closing Date and each Option Closing Date, Torys LLPas applicable, in respect of the Company and each Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.);
(f) the Company shall cause its current auditors to deliver to the Underwriter a legal opinion “bring down” comfort letter, addressed to the Underwriter and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the DealersUnderwriter, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two (2) Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letter referred to the extent governed by the laws of Alberta, Ontario or Québec.in Section 5(a)(iii) hereof;
(cg) at the Time of Closing, the Corporation will Company shall deliver to the Dealers a certificate Underwriter, at the Closing Time, certificates dated the Closing Date or the Option Closing Date, as applicable, addressed to the Dealers and their counsel, Underwriter and signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Company, or such other officers senior officer(s) of the Corporation Company as may be acceptable to the Dealers, acting reasonablyUnderwriter, certifying for and on behalf of the Corporation (Company and without personal liability) , to the effect that:
(i) the Corporation Company has complied in all respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation Company contained herein are true and correct in all material respects as of at the Closing Time of Closing with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) the Final Receipt has been issued by the BCSC for the Final Base Shelf Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus or any Supplementary Material (A) there has been no material change in the Company, (B) there has been no material and adverse change, change (financial or otherwise, ) in the business, assets (including intangible assets), affairs, operations, assetsprospects, liabilities (contingent or otherwise), capital capital, properties, condition (financial or prospects otherwise) or results of operations of the Corporation Company and its the Subsidiaries (taken as a whole), and (C) no transaction has been entered into by, and there has been no transaction that affects, the Company or any development involving a prospective Subsidiary which is material adverse change, financial or otherwise, in to the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of Company and the Corporation and its Subsidiaries (taken as a whole), from that other than as disclosed in the Corporation’s Information Record Prospectus or the Disclosure Materials (as they existed at the respective dates thereof)in any Supplementary Material;
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed with Canadian Securities Regulators forming Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Corporation’s Information Record contained Prospectus misleading or untrue in any material respect or which would result in a misrepresentation as at in the time Prospectus or which would result in the relevant document was filed that has Prospectus not since been corrected;complying with Applicable Securities Laws; and
(vi) such other matters as the Acquisition Underwriter may reasonably request;
(h) the Underwriter shall have received copies of correspondence indicating that the Company has not been terminated obtained the conditional approval of the TSX for the listing of the Offered Shares thereon, subject only to the Standard Listing Conditions, and approval of the NASDAQ for the listing of the Offered Shares thereon;
(i) the representations and warranties of the Company contained in this Agreement will be true at and as of the Closing Time on the Closing Date and, if applicable, the Option Closing Date, as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or amended in any material respect, no material provision has been waived satisfied by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on Company at or prior to the Outside Closing Time on the Closing Date or the Option Closing Date, substantially and in all material respects as contemplated in the 2.7 Announcementapplicable, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance have been performed, complied with the 2.7 Announcement on or satisfied at or prior to that time;
(j) the Outside absence of any misrepresentations in the Offering Documents or undisclosed material change or undisclosed material facts relating to the Company or the Offered Shares;
(k) the Company shall have received a Preliminary Receipt and a Final Receipt and submitted the Prospectus Supplement to the Securities Commissions qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been rescinded, repealed, revoked or otherwise nullified by any Securities Commission or other Governmental Authority;
(l) the Underwriter shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(viim) the Acquisition has not lapsed Underwriter will have received such other certificates, opinions, agreements or been withdrawnclosing documents in form and substance reasonably satisfactory to the Underwriter as the Underwriter may reasonably request;
(viiin) the Separation Agreement has not been terminated or amended in any material respectUnderwriter will have received evidence, no material provision has been waived by the Corporation and no event has occurred or condition exists which, satisfactory to the Corporation’s KnowledgeUnderwriter, will prevent the Separation from occurringacting reasonably, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇▇▇ Investors Service, Inc. for has waived his rights under Section 6.3 of the Notes Securityholders Agreement in connection with the Offering;
(o) the Underwriter shall be at least “Baa1” (stable), have received copies of any third-party consents required to complete the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” Offering and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” transactions contemplated in this Agreement in form and the Corporation shall deliver substance reasonably satisfactory to the Dealers letters from Underwriter as the Underwriter may reasonably request; and
(p) ▇▇▇▇▇’▇▇ Investors Service, Inc., DBRS Limited ▇▇▇▇▇▇▇▇ and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed all other directors and delivered by each officers of the Corporation Company will have entered into an agreement with and the Trust Company an in form and substance satisfactory to the DealersUnderwriter at the Closing Time on the Closing Date pursuant to which they will agree not to, acting reasonably;
(f) evidence satisfactory to for a period commencing on the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions date of this Agreement and ending on the Trust Indenture.date that is thirty (30) days following the Closing Date, directly or indirectly, offer, sell, contract to sell, make any short sale, lend, swap, or otherwise dispose of, transfer, assign, or announce any intention to do so, any Common Shares or any securities convertible into or exchangeable or exercisable for Common Shares, whether now owned or hereafter acquired, directly or indirectly, or under their control or direct
Appears in 1 contract
Sources: Underwriting Agreement (Village Farms International, Inc.)
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder Agents to complete the Closing and to arrange for the purchase of the Offered Shares at the Closing Time, and which conditions are subject to be satisfied by the Company at or prior to the satisfaction of Closing Time and may be waived in writing in whole or in part by the following conditionsAgents:
(a) The Agents shall have received at the Closing Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersAgents, acting reasonably, addressed to the Agents from Blake, C▇▇▇▇▇▇ & G▇▇▇▇▇▇ LLP, Canadian counsel to the Company, as to the laws of Canada and the Qualifying Jurisdictions, which counsel in turn may rely upon the opinions of local counsel where it deems such reliance proper or alternatively, make arrangements to have such opinions directly addressed to the Agents, and all of such counsel may rely upon, as to matters of fact, certificates of public officials and officers of the Company, and letters from stock exchange representatives and transfer agents, with respect to such matters the following matters:
(i) as to the Dealers may reasonably require relating existence and good standing of New Found Gold Corp. under the Business Corporations Act (British Columbia);
(ii) that New Found Gold Corp. has all requisite corporate power, capacity and authority under the laws of its jurisdiction of incorporation or formation to carry on its businesses as presently carried on and to own its property and assets as described in the Final Prospectus;
(iii) the authorized and issued and outstanding share capital of the Company;
(iv) that no authorization, consent or approval of, or filing, registration, permit, license, decree, qualification or recording with, any Governmental Authority in the Qualifying Jurisdictions is required for the performance by the Company of its obligations under this Agreement, the delivery to the Agents of the Offered Shares and, if applicable, the Additional Shares hereunder, the consummation of the transactions contemplated by this Agreement (including, without limitation, the distribution of the Notes Securities in the manner contemplated herein), other than those that have been obtained or made prior to the extent governed Closing Time;
(v) that all necessary corporate action has been taken by the Company to authorize (i) the execution and delivery of this Agreement and the performance of its obligations hereunder, and (ii) the delivery and, if applicable, the execution and filing of, the Preliminary Prospectus, the Final Prospectus, and, if applicable, any Prospectus Amendment, under the Canadian Securities Laws in each of the Qualifying Jurisdictions;
(vi) this Agreement has been duly 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 bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by Applicable Law;
(vii) the execution and delivery of this Agreement and the fulfilment of the terms hereof by the Company and the issuance, sale and delivery of the Offered Shares to be issued and sold by the Company at the Closing Time and the grant of the Over-Allotment Option do not and will not result in a breach of or a default under, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with: (A) the constating documents of the Company; (B) any resolutions of the shareholders or directors (including of any committee thereof) of the Company; or (C) any applicable corporate law or Securities Laws;
(viii) the Offered Shares have been duly and validly issued as fully paid and non-assessable shares in the capital of the Company;
(ix) that the statements under the heading “Eligibility for Investment” in the Preliminary Prospectus, and the Final Prospectus are accurate, subject to the assumptions, qualifications, limitations and restrictions set out therein;
(x) the rights, privileges, restrictions and conditions attaching to the Securities and the Over-Allotment Option are accurately summarized in all material respects in the Offering Documents;
(xi) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not on the list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken, all legal requirements have been fulfilled and all necessary approvals, permits, consents and authorizations of the Canadian Securities Regulators have been obtained, in each case by the Company to qualify the Securities for distribution and sale to the public in each of the Qualifying Jurisdictions through investment dealers or brokers registered in such categories under the applicable laws of Albertathe Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable laws; and
(xiii) that the common shares of the Company (including all of the Securities) have been approved for listing and posting for trading on the TSX-V, Ontario or Québecsubject only to customary listing conditions set forth in the conditional approval letter of the TSX-V dated July 24, 2020.
(b) The Agents receiving, at the Closing Time, favourable legal opinions (in customary form) dated as of the Closing Date from counsel to the Company as to title matters in respect of the Queensway Gold Project, in form and substance acceptable to the Agents, acting reasonably.
(c) The Agents receiving, at the Closing Time of Closinga legal opinion dated the Closing Date, the Corporation will deliver in form and substance acceptable to the Dealers Agents, acting reasonably, addressed to the Agents (and if required for opinion purposes, counsel to the Agents) from P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, U.S. counsel to the Company, and such counsel may rely upon, as to matters of fact, certificates of public officials and officers of the Company, and letters from stock exchange representatives and transfer agents, that no registration under the 1933 Act is required for the sale of Shares through the U.S. Affiliates in the United States in the manner contemplated by this Agreement;
(d) The Agents shall have received from DNTW Toronto LLP at the Closing Time a “bring-down” comfort letter dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, addressed to the Agents and the directors of the Company, confirming the continued accuracy of the comfort letter to be addressed to the Agents, and the directors of the Company pursuant to Section 7(a)(iv) with such changes as may be necessary to bring the information in such letter forward to a date not more than two Business Days prior to the Closing Date, provided such changes are acceptable to the Agents, acting reasonably.
(e) The Agents shall have received at the Closing Time a certificate dated the Closing Date Date, addressed to the Dealers and their counsel, and Agents signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable Company in form and substance satisfactory to the DealersAgents, acting reasonably, with respect to the notice of articles, articles and other constating documents of the Company, all resolutions of the board of directors of the Company relating to this Agreement and the incumbency and specimen signatures of signing officers of the Company.
(f) The Agents shall have received at the Closing Time a certificate dated the Closing Date, addressed to the Agents and signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company or other senior officers of the Company acceptable to the Agents certifying for and on behalf of the Corporation (Company and without personal liability) liability after having made due enquiry and after having examined the Final Prospectus, the U.S. Offering Memorandum and any Offering Document Amendment, that:
(i) since the Corporation date as of which information is given in the Final Prospectus there has complied with all been no Material Adverse Change and that no material transaction has been entered into by the covenants and satisfied all Company other than as disclosed in the terms and conditions of this Agreement and Final Prospectus, the Trust Indenture on its part to be complied with and satisfied at U.S. Offering Memorandum or prior to the Time of Closingany Offering Document Amendment;
(ii) the representations Final Prospectus and warranties U.S. Offering Memorandum (except any Agents’ Information) (i) do not contain a misrepresentation and contain full, true and plain disclosure of all material facts relating to the Securities and the Company, and (ii) do not contain an untrue statement of a material fact or omit to state a material fact that is required to be stated or that is necessary in order to make the statements therein, in the light of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated herebycircumstances under which they were made, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlynot misleading;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Securities or any other securities of the Company has been issued by any Governmental Authority and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any Governmental Authority;
(iv) since the respective dates Company has complied in all material respects with the terms and conditions of this Agreement on its part to be complied with at or prior to the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);Closing Time; and
(v) none the representations and warranties of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record Company contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in this Agreement and in any material respect, no material provision has been waived certificates or other documents delivered by the Corporation Company pursuant to or in connection with this Agreement are true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and correct in all material respects as contemplated in of the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance Closing Time with the 2.7 Announcement on or prior same force and effect as if made at and as of the Closing Time after giving effect to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended transactions contemplated by this Agreement, except in respect of any material respectrepresentations and warranties that are to be true and correct as of a specified date, no material provision has been waived by the Corporation in which case they will be true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and correct in all material respects as contemplated of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects; and all of those matters will in fact be true and correct as at the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed Closing Time.
(g) The Company shall have complied in accordance all material respects with the terms and conditions of this Agreement on its part to be complied with at or prior to the Closing Time.
(h) The Company will have made and/or obtained all necessary filings, approvals, permits, consents and acceptances to or from, as the case may be, the board of directors, the Canadian Securities Regulators, the TSX-V, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Company and the Agents, acting reasonably, prior to the Closing Date, it being understood that the Agents will do all that is reasonably required to assist the Company to fulfil this condition.
(i) The representations and warranties of the Separation Company contained in this Agreement and in any certificates or other documents delivered by the Company pursuant to or in connection with this Agreement shall be true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement;, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they will be true and correct in all material respects as of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects.
(ixj) there has not been any adverse change Subject to the last sentence of this paragraph, each of the persons identified in Schedule C, such persons being shareholders of the Company holding at least 5% of the common shares of the Company at Closing, and each of the Company’s senior officers and directors, will have executed a lock-up agreement in the assigned ratings on form set forth in Schedule D and the Notes Agents will have received a copy thereof. The Agents acknowledge that the Company will use commercially reasonable efforts to obtain lock-up agreements from certain shareholders controlled by DBRS Limited, or affiliated with E▇▇▇ ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by R▇▇ ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;.
(ek) The common shares of the Supplemental Indentures Company (including all of the Securities) shall have been executed approved for listing and delivered posting for trading on the TSX-V on or before the Business Day immediately preceding the Closing Date, subject only to the satisfaction by each the Company of customary post-closing conditions imposed by the TSX-V in similar circumstances.
(l) The Agents will have received a certificate from Computershare Investor Services Inc. with respect to its appointment as transfer agent and registrar of the Corporation common shares of the Company and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board number of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance common shares of the Notes Company issued and all matters relating thereto; and
(g) all actions required to be taken by or on behalf outstanding as at the end of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or Business Day immediately prior to the Time of Closing so as to:Date.
(im) execute and deliver this Agreement and all other documents contemplated under this Agreement; andThe Agents will have received a certificate of compliance or the equivalent in respect of the Company issued by the appropriate regulatory authorities in British Columbia dated within one Business Day prior to the Closing Date.
(iin) createThe Agents shall have received the Agents’ Commission.
(o) The Agents shall have received such other closing certificates, issue and sell opinions, receipts, agreements or documents as the Notes in accordance with the provisions of this Agreement and the Trust IndentureAgents or their counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Agents to sell and distribute any of the Debentures will be subject to the satisfaction following conditions, which are for the exclusive benefit of the Agents, and any of the following conditionsconditions may be waived, in whole or in part, by the Agents in their sole discretion pursuant to Section 15:
(a) The Agents shall have received at the Time of Closing, Closing a legal opinion dated the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Closing Date in form and substance and subject to deliver qualifications satisfactory to the Dealers Agents and their counsel, Torys LLPacting reasonably, a favourable legal opinion addressed to the Agents and their counsel from the Corporation’s counsel with respect to all such those matters as the Dealers Agents may reasonably request, including, without limiting request relating to the generality distribution of the foregoing: Debentures, including without limitation to the existence effect that:
(i) the Corporation is a corporation duly incorporated and validly existing under the Laws of the Province of Ontario;
(ii) the Corporation has all requisite corporate power and capacity authority to carry on the Business conducted by it as described in the Prospectus, to own, lease and operate its property and assets, to sign and file each of the Corporation; Offering Documents and to carry out the creationtransactions contemplated by the Prospectus;
(iii) each Principal Subsidiary is an entity duly formed and validly existing under the Laws of the jurisdiction of its formation;
(iv) each of the Corporate Entities has all requisite corporate power and authority to carry on the Business conducted by it as described in the Prospectus and to own, authorization, lease and operate its property and assets;
(v) all necessary action has been taken by the directors of the Corporation for the Corporation to validly issue and sale of deliver the Notes; the authorization of the Trust Indenture; that Debentures;
(vi) the attributes of the Notes Debentures are consistent in all material respects with the description thereof their respective descriptions set forth in the Term Sheets; that Prospectus;
(vii) all necessary action has been taken by the form directors of global certificate the Corporation to authorize the execution and delivery by the Corporation of this Agreement, and all necessary action has been taken by the directors of the Corporation to authorize the execution and delivery by the Corporation of the Trust Indenture and the Series Supplement, and the performance of the Corporation’s obligations hereunder and thereunder, and this Agreement, the Trust Indenture, the Series Supplement and the certificates representing the Notes has Debentures have been approved duly executed and delivered by the Corporation and complies with the provisions constitute legal, valid and binding obligations of the Trust Indenture; that Corporation, enforceable against it in accordance with their terms subject to customary qualifications;
(viii) the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability execution and delivery of this Agreement, the Trust Indenture and the Notes; that Series Supplement, the execution fulfillment of the terms hereof and delivery thereof by the Corporation ofCorporation, and the performance by the Corporation of its obligations under this Agreement issuance and the Trust Indenture, including the issuance delivery of the NotesDebentures, do not and will not result in a breach of any or a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with:
(A) any of the terms, conditions or provisions of the constating documents articles or by-laws of the Corporation, or ; or
(B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application Laws of the Province of Ontario or the federal Laws of Canada applicable therein is necessary that are applicable to the Corporation;
(ix) the Prospectus in order to preserve or protect both the validity or enforceability English and French languages, and the execution and filing of the Trust Indenture; Prospectus, in both the English and that French languages, with the offeringSecurities Commissions have been duly approved and authorized by all necessary action on the part of the Corporation, and the Base Prospectus in both the English and French languages, has been duly executed by or on behalf of the Corporation;
(x) all Authorizations under applicable Securities Laws have been obtained, all necessary documents have been filed and all other legal requirements have been fulfilled to qualify the issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue distribution and sale of the Notes Debentures to the public in each of the Qualifying Jurisdictions through dealers registered under the applicable Laws of each of the Qualifying Jurisdictions who have complied with the relevant provisions of such Securities Laws;
(xi) subject to the qualifications, assumptions, limitations and understandings set out therein, the payment statements as to matters of any fees related theretothe federal Laws of Canada set out in the Prospectus under the heading “Certain Canadian Federal Income Tax Considerations” fairly describe the principal Canadian federal income tax considerations as at the date thereof generally applicable under the Tax Act to a prospective purchaser of Debentures pursuant to the Prospectus;
(xii) subject to the qualifications, assumptions, limitations and understandings set out in the Prospectus under the heading “Eligibility for Investment”, the Debentures will be qualified as investments under the Tax Act for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts under the Tax Act; and
(xiii) Computershare Trust Company of Canada has been appointed as the trustee with respect to the Debentures under the Trust Indenture and Series Supplement. It is understood that such In connection with this opinion, counsel to the Corporation may rely on on, or deliver directly, the opinions of local counsel acceptable to them the Agents’ counsel, as to matters governed by the laws form, substance and choice of jurisdictions other than Canada and the Provinces of Ontariocounsel, Québecacting reasonably, British Columbia and Alberta, where it deems such reliance proper (or alternatively make arrangements to have may arrange for the provision of such opinions of local counsel directly addressed to the Dealers), Agents and their counsel) and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer the auditors of the CorporationCorporate Entities, public and stock exchange officials, and, to the extent appropriate in the circumstances, as to matters of fact on certificates of the directors or officers of the Corporation or officers or directors of the Corporate Entities.
(b) at The Corporation shall cause each of its auditors to deliver to the Time of ClosingAgents a comfort letter, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersAgents and their counsel, with respect to such matters as the Dealers may reasonably require relating acting reasonably, addressed to the distribution directors of the Notes Corporation and the Agents, bringing forward to a date not more than one business day prior to the extent governed by Closing Date, the laws information contained in the comfort letter referred to in Section 4(c)(iv) of Alberta, Ontario or Québecthis Agreement.
(c) The Corporation shall deliver to the Agents, at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date Date, addressed to the Dealers and their counsel, Agents and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the Dealers, acting reasonablyCorporation, certifying for and on behalf of the Corporation (without Corporation, and not in their personal liability) capacity, after having made due inquiries, with respect to those matters as the Agents may reasonably request, including to the effect that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied;
(ii) subsequent to the respective dates as at which information is given in the Prospectus, there has not been any Material Adverse Change, or any development involving a prospective Material Adverse Change, other than as disclosed in the Offering Documents;
(iii) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement and arising by reason of the delivery of the Offering Documents, are true and correct in all material respects with the same force and effect as if made at and as of such time, after giving effect to the transactions contemplated by this Agreement and the Trust Indenture Prospectus; and
(iv) Decision Documents have been obtained in respect of the Base Prospectus and any Supplementary Material, if applicable, and all other necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the Laws of each of the Qualifying Jurisdictions to qualify the issuance and sale of the Debentures to the public in each of the Qualifying Jurisdictions by or through persons who are registered under applicable legislation and who have complied with the relevant provisions of such applicable legislation and no order, ruling or determination having the effect of restricting or ceasing the trading or suspending the sale of the Debentures has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge of those senior officers, are contemplated or threatened by any Securities Commission or other regulatory authority; and all of those matters will in fact be true and correct as at the Time of Closing.
(d) All actions required to be taken by or on behalf of the Corporation, including the passing of all requisite resolutions of the directors of the Corporation and all requisite filings with any Governmental Body or Securities Commission shall have occurred at or prior to the Time of Closing so as to (i) validly authorize the execution and filing of the Offering Documents and the performance of the obligations of the Corporation hereunder, and (ii) create and issue the Debentures.
(e) The Agents shall have received from the Corporation at the Time of Closing a copy of a final rating agency letter from each of (i) S&P, confirming a credit rating of “BBB+” for the Debentures, and (ii) DBRS, confirming a rating of “BBB(high)” with a “Negative” trend for the Debentures.
(f) The Corporation shall have complied with all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Time of Closing;.
(iig) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or The Agents shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to received such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Servicecertificates, Inc. for the Notes shall be at least “Baa1” (stable)opinions, the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Serviceagreements, Inc.materials or documents, DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized Agents and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiariestheir counsel, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at Agents or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenturetheir counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agent to complete each Closing and to arrange for the satisfaction purchase of the following conditionsOffered Securities at each Closing Time, and which conditions are to be satisfied by the Corporation at or prior to each Closing Time and may be waived in writing in whole or in part by the Agent:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to deliver to the Dealers and their counsel, Torys LLP, a Agent favourable legal opinion opinions dated and delivered on the Closing Date, in form and substance satisfactory to the Agent, acting reasonably (it being understood that such counsel may rely to the extent appropriate in the circumstance: (i) as to matters of fact, on certificates of the Corporation executed on its behalf by a senior officer of the Corporation, on certificates of the Transfer Agent, as to its appointment as such and the issued capital of the Corporation and on certificates of the Warrant Agent and Trustee as to its appointment as such; and (ii) on certificates of public officials), with respect to the following matters (subject to usual and customary assumptions and qualifications):
(i) the Corporation is a corporation existing under Business Corporations Act (British Columbia) and has all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets;
(ii) the Corporation has all necessary corporate capacity, power and authority: (A) to execute and deliver each of the Transaction Documents and to perform its obligations hereunder and thereunder, (B) to issue, sell and deliver the Offered Securities, (C) to grant the Over-Allotment Option, and (D) to create, issue and deliver the Broker Securities;
(iii) the authorized and issued and outstanding share capital of the Corporation; ;
(iv) all necessary corporate action has been taken by the creation, authorization, issue Corporation to authorize the execution and sale delivery of each of the Notes; Transaction Documents and the authorization performance of its obligations hereunder and thereunder, and each of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes Transaction Documents has been approved duly executed and delivered by the Corporation and complies with the provisions constitutes a legal, valid and binding obligation of the Trust Indenture; that Corporation enforceable against the Corporation has appointed in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the Trustee as trustee under rights of creditors generally and subject to other standard assumptions and qualifications, including the Trust Indenture; qualifications that the Trustee, at its principal office equitable remedies may be granted in the City discretion of Torontoa court of competent jurisdiction and that enforcement of rights to indemnity, has been duly appointed contribution and waiver of contribution set out in this Agreement may be limited by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that Applicable Law;
(v) the execution and delivery of each of the Transaction Documents and the fulfilment of the terms hereof and thereof by the Corporation of, and the performance issuance, sale and delivery of the Offered Securities to be issued and sold by the Corporation at the Closing Time, the grant of its obligations under this Agreement the Over-Allotment Option and the Trust Indenturecreation, including the issuance and delivery of the Notes, Broker Securities do not and will not result in a breach of any or a default under, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with: (A) the provisions of the constating documents of the Corporation, or ; (B) any resolutions of the shareholders or directors (including of any committee thereof) of the Corporation; or (C) any applicable corporate law or Canadian Securities Laws;
(vi) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of general application applicable each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators and the delivery of each of the preliminary and final U.S. Placement Memorandum;
(vii) the Debentures have been duly and validly created and issued and the Debenture Shares have been reserved and authorized and allotted for issuance and upon the payment therefor, and the issue thereof upon conversion of the Debentures in the Offering Jurisdictions; the Trust Indenture complies accordance with the provisions of the CBCA Indentures the Debentures Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(viii) the Warrants have been duly and validly created and issued and the Business Corporations Act (Ontario); Warrant Shares have been reserved and authorized and allotted for issuance, and upon the issuance payment therefor and the issue thereof upon exercise of the Notes under the Trust Indenture complies Warrants in accordance with the provisions of the CBCA; Warrant Indenture, the reporting issuer status Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation under applicable Corporation;
(ix) the Broker Warrants have been duly and validly created and issued;
(x) the Broker Unit Warrants have been duly and validly created and reserved for issuance and the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Broker Unit Warrants in accordance with the provisions of the Warrant Indenture, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(xi) the Broker Unit Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Warrant Indenture, the Broker Shares will be duly and validly issued as fully paid and non- assessable shares in the capital of the Corporation;
(xii) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Over-Allotment Option and the Broker Securities are accurately summarized in all material respects in the Offering Documents;
(xiii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording Regulators in each of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Qualifying Jurisdictions have been obtained by the Corporation to purchasers qualify the distribution to the public of the Offered Securities in each of the Offering JurisdictionsQualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over- Allotment Option and the issuance of the Broker Warrants to the Agent;
(xiv) the issuance by the Corporation of the Debenture Shares upon the due conversion of the Debentures, in accordance with the terms Warrants Shares upon the due exercise of the Warrants, the issuance of the Broker Unit Shares and conditions the Broker Unit Warrants upon the due exercise of this Agreement, isthe Broker Warrants and the issuance of the Broker Warrant Shares upon exercise of the Broker Unit Warrants is exempt from, or will be exempt from is not subject to, the prospectus and registration requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus will be required, no or other document will be documents are required to be filed, no proceeding will be required to be taken and no approval, permit, consent, orderproceedings taken, or authorization of any regulatory authority will be required to be approvals, permits, consents or authorizations obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes Qualifying Jurisdictions in connection therewith;
(xv) the Corporation is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not on the payment list of any fees related theretodefaulting reporting issuers maintained by the Canadian Securities Regulators;
(xvi) subject to the qualifications and assumptions set out therein, the statements set forth in the Final Prospectus under the heading “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(xvii) Odyssey Trust Company has been appointed as Warrant Agent and Trustee; and
(xviii) such other matters as may reasonably be requested by the Agent no less than 48 hours prior to the Closing Time. It is understood that In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel to the Corporation in the Qualifying Jurisdictions acceptable to them counsel to the Agent, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities, the grant of the Over-Allotment Option and the issuance of the Broker Securities, or opinions may be given directly by local counsel to the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local province in which counsel directly addressed to the Dealers)Corporation is qualified to practise, and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) at the Time of Closingif any Offered Securities are offered and sold pursuant to Schedule “A” to this Agreement, the Dealers Corporation will have received from their cause a favourable legal opinion to be addressed and delivered to the Agent by the Corporation’s United States Securities Law counsel, Torys LLP▇▇▇▇▇, Figa & Will, P.C., dated and delivered on the Closing Date, such opinion to be subject to such qualifications and assumptions as the Agent may agree and in form and substance satisfactory to the Agent, acting reasonably, to the effect that no registration of the Debentures and Warrants offered and sold in the United States will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Debentures and Warrants in the United States is made in accordance with Schedule “A” to this Agreement, it being understood that such counsel need not express its opinion with respect to any resale of any of the Offered Securities or Broker Securities; provided, however that such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation, the Agent and its U.S. Affiliate or any Selling Firm, and such U.S. purchasers and upon compliance of such Person with the covenants contained in this Agreement, the U.S. Placement Memorandum and in any schedule or exhibit hereto;
(c) the Corporation will cause favourable legal opinions to be delivered to the Agent by the Corporation’s counsel, dated and delivered on the Closing Date, regarding the Corporation’s Subsidiaries, in form and substance satisfactory to the Agent, acting reasonably, with respect to the following matters:
(i) each Subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(ii) each Subsidiary having all requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets; and
(i) the authorized and issued share capital of each Subsidiary and the ownership thereof;
(d) the Corporation will cause the Corporation’s Auditors to deliver to the Agent a legal opinion comfort letter, dated and delivered on the Closing Date, in form and substance satisfactory to the DealersAgent, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letter referred to the extent governed by the laws of Alberta, Ontario or Québec.in Section 6(b)(v);
(ce) at the Time of Closing, the Corporation will deliver a certificate of the Corporation, addressed to the Dealers a certificate Agent and dated the Closing Date addressed to the Dealers and their counselDate, and signed on behalf of the Corporation, but without personal liability, by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other senior officers of the Corporation as may be acceptable to the DealersAgent, acting reasonably, in form and substance satisfactory to the Agent, acting reasonably, certifying for with respect to: (i) the notice of articles and articles of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Securities to be issued and sold by the Corporation, the grant of the Over-Allotment Option, the issuance of the Broker Securities and the authorization of the Offering Documents, the Transaction Documents and the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(f) the Corporation will deliver a certificate of the Corporation, addressed to the Agent and its counsel and dated the Closing Date, and signed on behalf of the Corporation (Corporation, but without personal liability) , by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other senior officers of the Corporation as may be acceptable to the Agent, acting reasonably, in form and substance satisfactory to the Agent, acting reasonably, certifying, to the best of the knowledge, information and belief of the Persons so signing, after having made due enquiry and after having reviewed the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied or satisfied, other than conditions which have been waived by the Agent, at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects (provided that any representations and warranties that are qualified as of to materiality shall be true and correct in all respects) as at the Time of Closing Time, with the same force and effect as if made on and as at the Time of Closing Time, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened under any Securities Laws or by any regulatory authority; and
(iv) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated, threatened, or prospective, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects, capital or prospects control of the Corporation (on a consolidated basis), and (B) no transaction has been entered into by the Corporation or its subsidiaries which is material to the Corporation (on a consolidated basis), other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(g) the Corporation will have made and/or obtained all necessary filings, approvals, permits, consents and acceptances to or from, as the case may be, the board of directors, the Securities Regulators, the CSE, and any other applicable person required to be made or obtained by the Corporation in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Corporation and the Agent, acting reasonably, prior to the Closing Date or such later date as may be permitted under the Securities Laws including “blue sky” laws in the United States, it being understood that the Agent will do all that is reasonably required to assist the Corporation to fulfil this condition;
(h) the Agent will have received a certificate from Computershare Trust Company of Canada with respect to its appointment as transfer agent and registrar of the Common Shares, and the number of Common Shares issued and outstanding as at the end of the Business Day immediately prior to the Closing Date;
(i) the Agent will have received a certificate of compliance or the equivalent in respect of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, issued by the appropriate regulatory authority in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of respective jurisdictions in which the Corporation and its Subsidiaries (taken as a whole)are incorporated, from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or dated within one Business Day prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(viij) Odyssey Trust Company will be, as of the Acquisition has not lapsed or been withdrawnClosing Date, duly appointed as Trustee and as Warrant Agent under the Indenture and the Warrant Indenture, respectively;
(viiik) the Separation Agreement has not been terminated Agent will have received a reporting issuer certificate or amended in any material respect, no material provision has been waived by report for each of the Qualifying Jurisdictions confirming that the Corporation and no event has occurred is a reporting issuer not in default of applicable Canadian Securities Laws, dated or condition exists which, retrieved within two (2) Business Days prior to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the NotesClosing Date; and
(xl) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.th
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations obligation of the Dealers hereunder are Purchasers to purchase the Offered Shares at the Closing Time on the Closing Date will be subject to the satisfaction of the following conditionsfollowing:
(a) at the Time Lead Agent's receipt of ClosingCanadian legal opinions, addressed to the Corporation will cause its counselAgents, Blake, ▇▇▇dated the Closing Date from ▇▇▇▇ & ▇▇▇▇▇▇▇ Berlis LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters in its capacity as the Dealers may reasonably request, including, without limiting the generality Company's Canadian counsel as to matters of the foregoing: to the existence Canadian federal and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation ofOntario provincial law, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them the Agents' counsel as to matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces Province of Ontario, Québecto the effect set forth in Schedule "D";
(b) the Lead Agent's receipt of legal opinions, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers)Agents, and dated the Closing Date from counsel to each Material Subsidiary (who may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer of officers, public and Exchange officials related to each Material Subsidiary), in form and substance acceptable to the Corporation.
(b) at the Time of Closing, the Dealers will have received from Agents and their counsel, Torys LLPacting reasonably, a substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(i) such Material Subsidiary having been incorporated and existing under the Applicable Laws of their respective jurisdictions of incorporation;
(ii) such Material Subsidiary having the corporate capacity and power to own and lease their properties and assets and to conduct their Business as described in the Continuous Disclosure Materials; and
(iii) as to the authorized and issued share capital of such Material Subsidiary, with the exception of Cybin IRL Limited, and to the ownership thereof;
(c) the Lead Agent's receipt of U.S. legal opinion opinions, addressed to the Agents, dated the Closing Date, in form and substance satisfactory acceptable to the DealersLead Agent and its counsel, with respect to such matters as the Dealers may reasonably require relating acting reasonably, to the distribution effect that no registration of the Notes Offered Shares offered and sold in the United States or to, or for the account or benefit of, U.S. Persons will be required under the U.S. Securities Act, provided that such offers and sales are made in compliance with Schedule "A" of this Agreement and provided further that it being understood that no opinion is expressed as to the extent governed by the laws any subsequent resale of Alberta, Ontario or Québec.any Offered Shares;
(cd) at the Time Lead Agent's receipt of Closing, the Corporation will deliver to the Dealers a certificate dated as of the Closing Date and addressed to the Dealers and their counsel, Agents and signed by the chief executive officer President and the chief financial officer Chief Financial Officer of the Corporation or such other officers senior officer(s) of the Corporation as may be acceptable to the DealersAgents, in form and content satisfactory to the Agents, acting reasonably, with respect to:
(i) the articles and by-laws of the Corporation;
(ii) the resolutions of the Corporation's board of directors relevant to the issue and sale of the Offered Shares, and authorization of this Agreement and the other Offering Documents;
(iii) the incumbency and signatures of signing officers of the Corporation; and
(iv) confirmation that the representations and warranties of the Corporation contained in this Agreement are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification, in all respects) at and as of the Closing Time on the Closing Date, as if such representations and warranties were made at and as of such time and all material agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Corporation will have been performed, complied with or satisfied prior to that time;
(e) the Lead Agent's receipt of certificates dated as of the Closing Date addressed to the Agents and signed by the President of the Corporation and the Chief Financial Officer of the Corporation, or such other senior officer(s) of the Corporation as may be acceptable to the Agents, acting reasonably, in form and content satisfactory to the Agents, acting reasonably, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, to the effect that:
(i) the Corporation has complied in all material respects with all the covenants and satisfied all the material terms and conditions of this Agreement and the Trust Indenture other Offering Documents on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) without bringing forward any date expressly referenced in a specific representation, the representations and warranties of the Corporation contained herein are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification, in all respects) as of at the Closing Time of Closing with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;; and
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the offering or sale of the Notes has been issued Shares and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officerspersons, are pending, contemplated or threatened;
(ivf) since the respective dates Agents' receipt of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), Subscription Agreement from that disclosed in each Purchaser accepted by the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(vg) none each of the documents filed with Canadian Securities Regulators forming Corporation's directors and senior executive officers shall each have executed and delivered the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been correctedLock Up Agreements;
(vih) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms Agents' completion of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each their due diligence review of the Corporation and the Trust Company in form and substance satisfactory Subsidiaries to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretotheir satisfaction; and
(gi) the Agents' receipt of evidence of electronic registration or delivery of certificates representing, in the aggregate, all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, Offered Shares issued on the Closing Date registered in such name or names as applicable, including the passing of all requisite resolutions of the board of directors of Agents will notify the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or in writing not less than 48 hours prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust IndentureTime.
Appears in 1 contract
Sources: Agency Agreement (Cybin Inc.)
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agents to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use commercially reasonable efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agents:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Burstall LLP, to deliver to the Dealers and their counsel, Torys LLP, Agents a favourable legal opinion addressed to the Agents dated and delivered on the Closing Date, in form and substance satisfactory to the Agents acting reasonably, with respect to all such matters the following matters:
(i) as to the Dealers may reasonably request, including, without limiting the generality incorporation and valid existence of the foregoing: Corporation and as to the existence and corporate capacity, power and capacity authority of the Corporation to carry out its obligations under this Agreement and to issue the Offered Securities;
(ii) that the Corporation is a reporting issuer in each of the Qualifying Jurisdictions that recognizes the concept of a reporting issuer and is not noted on a list maintained by the Canadian Securities Regulators as being in default under Securities Laws;
(iii) as to the authorized capital of the Corporation; ;
(iv) that the creationCorporation has all necessary corporate capacity and power under the Laws of Canada to carry on its business as presently carried on and to own, authorization, issue lease and sale operate its Assets and Properties;
(v) that all necessary corporate action has been taken by the Corporation to authorize the execution of the Notes; Final Prospectus and any Supplementary Material and the authorization of filing thereof with the Trust Indenture; Canadian Securities Regulators;
(vi) that the attributes of the Notes are consistent Offered Securities and the Underlying Shares conform in all material respects with the description descriptions thereof in the Term Sheets; that Final Prospectus;
(vii) the form of global certificate definitive certificates representing the Notes has Convertible Debentures, the Unit Warrants and the Compensation Options have been duly approved and adopted by the Corporation and complies comply with applicable Law and the provisions articles and the by-laws of the Corporation;
(viii) Computershare Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the TrusteeCompany of Canada, at its principal office in the City of Toronto, Calgary has been duly appointed by the Corporation as the paying transfer agent and registrar for the Common Shares, as trustee in respect of the Notes Convertible Debentures and as Warrant Agent in respect of the Unit Warrants;
(ix) that all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the Securities Regulators required under Securities Laws have been obtained, in each case by the Corporation, to qualify the distribution of the Offered Securities and the Over- Allotment Option in each of the Qualifying Jurisdictions through investment dealers or brokers duly registered in such categories under the Trust Indenture; Applicable Laws of the enforceability Qualifying Jurisdictions who have complied with the relevant provisions of such Applicable Laws;
(x) that all necessary corporate action has been taken by the Corporation to authorize the issuance of the Offered Securities and the Compensation Options;
(xi) that upon payment of the applicable purchase price therefor or upon due conversion of the Convertible Debentures, the Unit Warrants and the Compensation Options (including those issued in connection with the issue of Additional Units upon the exercise of the Over-Allotment Option), the Warrant Shares, the Debenture Shares and the Compensation Shares, as applicable, will be duly and validly issued as fully paid and non-assessable shares of the Corporation;
(xii) that the issuance of the Debenture Shares, the Warrant Shares and the Compensation Shares is exempt from the prospectus requirements of Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Securities Laws to permit such issuance;
(xiii) that the Convertible Debentures have been duly authorized by the Corporation and upon their issuance in accordance with the terms of this Agreement, the Trust Indenture Agreement and the Notes; Debenture Indenture will constitute legally binding agreements of the Corporation, enforceable in accordance with the terms of the Debenture Indenture;
(xiv) that the Unit Warrants have been duly authorized by the Corporation and upon their issuance in accordance with the terms of this Agreement and the Warrant Indenture, will constitute legally binding agreements of the Corporation, enforceable in accordance with the terms of the Warrant Indenture;
(xv) that all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder and each of the Transaction Documents has been executed and delivered by the Corporation ofand constitute a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution may be limited by Applicable Law;
(xvi) that none of the execution and delivery of any of the Transaction Documents, the performance by the Corporation of its obligations under this Agreement and hereunder or thereunder nor the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Offered Securities to be issued and sold by the Corporation at the Closing Time will conflict with or result in any breach: (A) any Applicable Laws; (B) the articles of incorporation, by-laws or resolutions of the directors or shareholders of the Corporation or the Subsidiaries; (C) of which counsel is aware, any material Contract to which the Corporation or any of the Subsidiaries is a party or by which any of them is bound; or (D) of which counsel is aware, any judgment, decree or order binding the Corporation or the Subsidiaries or the material Assets and Properties thereof, which default or breach might reasonably be expected to constitute a Material Adverse Effect;
(xvii) that all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions have been obtained by the Corporation to purchasers qualify the distribution to the public of the Offered Securities in each of the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Qualifying Jurisdictions through investment dealers who are duly registered under Securities Laws and no prospectus will be requiredwho have complied with the relevant provisions of Securities Laws;
(xviii) that the rights, no other document will be required privileges, restrictions and conditions attaching to be filedthe Offered Securities conform in all material respects to the descriptions thereof contained in the Final Prospectus;
(xix) that the statements set forth in the Final Prospectus under the captions “Certain Canadian Federal Income Tax Considerations” and “Eligibility for Investment” are accurate, no proceeding will be required subject to be taken the limitations and no approvalqualifications set out therein; and
(xx) that subject only to the Standard Listing Conditions, permitthe Convertible Debentures, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes Unit Warrants and the payment of any fees related theretoUnderlying Shares have been conditionally approved for listing on the CSE. It is understood that In connection with such opinion, counsel to the Corporation may rely on the opinions of local counsel acceptable to them in the Qualifying Jurisdictions, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada the province in which they are qualified to practise and may rely, to the Provinces extent appropriate in the circumstances, as to matters of Ontariofact on certificates of officers of the Corporation and others;
(b) the Agents will have received at the Closing Time, Québec, British Columbia and Alberta, (or alternatively make arrangements a legal opinion to have such opinions of local counsel directly be addressed to the Dealers)Agents dated as of the Closing Date, in form and substance acceptable to the Agents, acting reasonably, from counsel to the Subsidiaries (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers), that: (i) each of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, Subsidiaries is a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by corporation existing under the laws of Alberta, Ontario or Québec.
(c) at the Time its jurisdiction of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counselorganization, and signed by the chief executive officer has all requisite corporate capacity, power and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable authority to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture carry on its part business as now conducted and to be complied with own, lease and satisfied at or prior to the Time of Closing;
(ii) the representations operate its Assets and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the NotesProperties; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The Underwriters’ obligations of hereunder at the Dealers hereunder are Closing Time shall be subject to the satisfaction accuracy of the representations and warranties of the Corporation contained in this Agreement as of the date of this Agreement and as of the Closing Date, the performance by the Corporation of its obligations under this Agreement and the following conditions:
(a) at the Time of Closing, the Corporation will shall cause its counsel, BlakeFogler, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers Underwriters and their counsel, Torys LLP, a favourable legal opinion dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, and subject to and containing standard assumptions and qualifications, with respect to all such matters as the Dealers may reasonably requestfollowing matters:
(i) the Corporation is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Provinces and it is not listed as in default of any of the Securities laws in the Qualifying Provinces;
(ii) the Corporation is a corporation existing under the laws of Yukon Territory and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets;
(iii) the existence authorized and issued and outstanding share capital of the Corporation;
(iv) the Corporation has all necessary corporate power and capacity capacity: (A) to execute and deliver this Agreement, the Debenture Indenture and the certificates representing the Offered Debentures and to perform its obligations hereunder and thereunder; (B) to create, issue and sell the Offered Debentures; and (C) to issue the Common Shares issuable upon conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures in accordance with the terms of the Debenture Indenture;
(v) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Commissions;
(vi) all necessary corporate action has been taken by the Corporation to authorize the allotment and issue of the Offered Debentures and the Common Shares issuable upon conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures as fully paid and non-assessable common shares (as the case may be) in the capital of the Corporation;
(vii) the Offered Debentures have been validly created, allotted and issued and upon receipt of consideration for their issuance in accordance with the Debenture Indenture will be duly and validly issued securities of the Corporation and the Offered Debentures conform and will conform to all statements relating thereto contained in the Offering Documents and such description conforms to the rights set forth in the instruments defining the same;
(viii) the Common Shares issuable upon conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures have been authorized and allotted for issuance and, upon the issue of Common Shares in accordance with the Debenture Indenture, such Common Shares will be validly issued as fully paid and non-assessable shares of the Corporation;
(ix) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Debenture Indenture, the certificates representing the Offered Debentures and the performance of its obligations hereunder and thereunder and this Agreement, the Debenture Indenture, the certificates representing the Offered Debentures have been executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution may be limited by applicable law;
(x) the rights, privileges, restrictions and conditions attaching to the Offered Debentures and the Common Shares issuable upon conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures are accurately summarized in all material respects in the Final Prospectus;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Provinces have been obtained by the Corporation to qualify the distribution to the public of the Offered Debentures in each of the Qualifying Provinces through persons who are registered under applicable Securities Laws and who have complied with the relevant provisions of applicable Securities Laws and no other documents will be required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under the Securities Laws of the Qualifying Provinces to permit the trading in the Qualifying Provinces of the Offered Debentures, through registrants registered under applicable Securities Laws or in circumstances in which there is an exemption from the registration requirements of such applicable laws;
(xii) the issue by the Corporation of the Common Shares issuable upon conversion, redemption, or maturity of or otherwise pursuant to the Offered Debentures in accordance with the terms of the Debenture Indenture is exempt from, or is not subject to, the prospectus and registration requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained by the Corporation under Securities Laws in any of the Qualifying Provinces in respect of such distribution;
(xiii) the first trade in, or resale of, the Common Shares issuable upon conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures in accordance with the terms of the Debenture Indenture is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Securities Laws in any of the Qualifying Provinces in respect of such trade, provided that:
(1) the trade is not a “control distribution” as defined in National Instrument 45-102); and
(2) the creationCorporation is a “reporting issuer” at the time of the trade;
(xiv) subject only to the Standard Listing Conditions, authorizationthe Common Shares issuable upon conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures in accordance with the terms of the Debenture Indenture have been conditionally approved for listing on the Stock Exchanges (except, in respect of the NYSE Amex, any such Common Shares not calculable on the date hereof);
(xv) subject only to the Standard Listing Conditions, the Offered Debentures have been conditionally approved for listing on the TSX;
(xvi) the form of the definitive certificate representing the Offered Debentures has been duly approved and adopted by the Corporation and complies in all material respects with the to YBCA and the Debenture Indenture;
(xvii) the form and terms of the definitive certificates representing the Common Shares have been approved by the board of directors of the Corporation and comply in all material respects with the YBCA and the rules and by-laws of the Stock Exchanges;
(xviii) that the provision of the YBCA have been complied with in connection with the creation and issue of the Offered Debentures and no registration, filing (other than filing the Debenture Indenture on SEDAR as required pursuant to Securities Laws of the Qualifying Provinces) or recording of the Debenture Indenture under the laws of Canada or the YBCA is necessary in order to permit the valid offer, issue and sale of the Notes; Offered Debentures in the authorization manner contemplated by this Agreement and the Debenture Indenture or to preserve or protect the validity and enforceability of the Trust Indenture; that Debenture Indenture and the attributes of Offered Debentures;
(xix) the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation execution and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability delivery of this Agreement, the Trust Debenture Indenture and the Notes; that certificates representing the execution Offered Debentures, the fulfilment of the terms hereof and delivery thereof by the Corporation of, and the performance issuance, sale and delivery of the Offered Debentures to be issued and sold by the Corporation of its obligations under this Agreement at the Closing Time and the Trust Indenture, including the issuance of the Notes, Common Shares do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of any of of, and do not and will not conflict with: (A) the provisions of the YBCA or Yukon securities law; or (B) the articles, by-laws or other constating documents of the Corporation;
(xx) CIBC Mellon Trust Company has been duly appointed as the transfer agent and registrar for the Common Shares;
(xxi) Computershare Trust Company of Canada has been duly appointed as the transfer agent, or register and trustee for the Offered Debentures under the Debenture Indenture; and
(Bxxii) any law of general application applicable the text the Final Prospectus under the headings “Canadian Federal Income Tax Considerations” and “Eligibility for Investment” in the Offering Jurisdictions; Final Prospectus is an accurate statement of law subject to the Trust Indenture complies assumptions and other qualifications referred to therein. In connection with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of such opinion, counsel to the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel in the Qualifying Provinces acceptable to them counsel to the Underwriters, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Debentures or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements province in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practise and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) at if any Offered Debentures are sold by an Underwriter or any affiliate of the Time of ClosingUnderwriters or Selling Firm in transactions requiring an exemption from the registration requirements under the U.S. Securities Act, the Dealers Corporation shall cause a favourable legal opinion to be delivered by its United States counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, to the Underwriters, such opinion to be subject to such qualifications and assumptions as the Underwriters may agree, acting reasonably, to the effect that no registration of the Offered Debentures will be required under the U.S. Securities Act in connection with the offer and sale of the Offered Debentures in the United States, provided, that the sale of the Offered Debentures in the United States is made in accordance with Schedule “A” hereto, it being understood that such counsel need not express its opinion with respect to (i) the issuance of Common Shares in connection with any term, provision or feature of the Offered Debentures, other than the issuance of Common Shares upon conversion of the Offered Debentures or (ii) any subsequent resales of the Offered Debentures or the Common Shares and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(c) the Underwriters shall have received from their counsel, Torys LLP, a favourable legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from local counsel to the Corporation with respect to title to the Black Fox Property, Pike River Property and Grey Fox Property;
(d) the Underwriters shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Underwriters may agree, certifying for and on behalf of the Corporation, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Debentures to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(e) the Corporation shall cause the Corporation’s Auditors to deliver to the Underwriters a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed the information contained in the comfort letter referred to in paragraph 6(a)(ii) hereof;
(f) the Dealers and their counselUnderwriters shall have received a certificate, and dated as of the Closing Date, signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as the Underwriters may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (and without personal liability) , to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of at the Time of Closing Time, with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) receipts or decision documents have been issued by the Canadian Securities Commissions for the Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation which is material to the Corporation, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials (Supplementary Material, as they existed at the respective dates thereof);case may be; and
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that there has not since been corrected;
(vi) the Acquisition has not been terminated or amended no change in any material respect, no fact (which includes the disclosure of any previously undisclosed material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated fact) contained in the 2.7 AnnouncementFinal Prospectus which fact or change is, and or may be, of such a nature as to render any statement in the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on Final Prospectus misleading or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended untrue in any material respect, no material provision has been waived by the Corporation and no event has occurred respect or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and which would result in all material respects as contemplated a misrepresentation in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change Final Prospectus or which would result in the assigned ratings on Final Prospectus not complying with applicable Securities Laws in the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in factQualifying Provinces;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) the Underwriters shall have received copies of correspondence indicating that the Corporation has obtained all actions required necessary approvals for the Common Shares issuable pursuant to the conversion, redemption or maturity of or otherwise pursuant to the Offered Debentures to be taken by or conditionally listed on behalf the Stock Exchanges (except, in respect of the Corporation and its SubsidiariesNYSE Amex, as applicableany such Common Shares not calculable on the date hereof), including subject only to the passing Standard Listing Conditions;
(h) the Underwriters shall have received copies of all requisite resolutions of the board of directors of correspondence indicating that the Corporation and each Subsidiary and has obtained all requisite filings with governmental authoritiesnecessary approvals for the Offered Debentures to be conditionally listed on the TSX, will have occurred at or prior subject only to the Time of Closing so as to:Standard Listing Conditions;
(i) execute the Underwriters shall have completed and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) createbe satisfied, issue and sell the Notes in accordance their sole discretion, acting reasonably, with the provisions results of this Agreement and the Trust Indenture.their d
Appears in 1 contract
Conditions of Closing. The Agents’ obligations under this Agreement and the obligations of the Dealers hereunder Purchasers under the Subscription Agreements are conditional upon and subject to the accuracy, in all material respects, of the representations and warranties of the Corporation and of each of the Pacific Road Entities contained in this Agreement as of the date of this Agreement and as of the Time of Closing, the performance of the Corporation and each of the Pacific Road Entities of their respective obligations under this Agreement and to the satisfaction of each of the following conditions:
(a1) The Agents receiving favourable legal opinions addressed to the Agents and the Pacific Road Entities (i) at the Time of ClosingClosing dated the Closing Date, the Corporation will cause its counsel, Blake, ▇from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ OR LLP, to deliver Canadian counsel to the Dealers Corporation, as to matters governed by the laws of Ontario as set forth in this Section 6(1); and their counsel(ii) at the Time of Closing dated the Closing Date, Torys LLP, a favourable legal opinion from local counsel with respect to all such matters in each Offering Jurisdiction in respect of which a distribution of Special Warrants to Purchasers under the Offering has occurred, other than Ontario, which counsel in turn may rely as the Dealers may reasonably requestto matters of fact on certificates of officers, including, without limiting the generality public and exchange officials or of the foregoing: auditor of the Corporation, to the existence effect, or substantially to the effect set forth below (for greater certainty, Vector Corporation Finance Lawyers in British Columbia shall include in its local counsel opinion matters related to corporate law governing the Corporation), in each case, subject to customary assumptions and qualifications:
(a) the Corporation having been incorporated and existing under the laws of British Columbia;
(b) there are no restrictions on the corporate power and capacity of the Corporation; Corporation to own and lease its properties and assets and to conduct its business as now currently conducted;
(c) there are no restrictions on the creation, authorization, issue corporate power and sale capacity of the Notes; Corporation to enter into the authorization Documents and to carry out its obligations under the Documents;
(d) the Corporation is a reporting issuer or the equivalent thereof in British Columbia, Alberta and Ontario and is not on the list of defaulting issuers maintained by the Securities Commissions in those provinces;
(e) the authorized share capital of the Trust Indenture; that the attributes of the Notes are consistent in Corporation;
(f) all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes necessary corporation action has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that taken to authorize the execution and delivery by the Corporation of, of the Documents and the performance by the Corporation of its obligations under this Agreement the Documents, and the Trust IndentureDocuments have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their respective terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors' rights generally, that specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction, that rights of indemnity and/or contribution may be limited by applicable laws and that provisions purporting to sever prohibited or unenforceable provisions without affecting the enforceability of the remainder of the agreement may be limited by applicable laws;
(g) the execution and delivery of the Documents by the Corporation and the performance of its obligations thereunder, including the issuance issue, sale and delivery on the Closing Date of the NotesSpecial Warrants, to the Agents or the Purchasers, as the case may be, do not and will not conflict with and do not result in a breach of of:
(i) any of (A) the terms, conditions or provisions of the constating documents articles or by-laws of the Corporation, or ; or
(Bii) any law laws of general application applicable in the Offering Jurisdictions; Jurisdictions that are applicable to the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act Corporation;
(Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of h) all necessary corporate action having been taken by the Corporation under applicable Canadian Securities Laws; that no authorizationto authorize the creation, consent or approval ofexecution, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale issuance and delivery of the Notes Special Warrants;
(i) the Special Warrants and the Underlying Securities having been duly and validly issued by the Corporation to purchasers in Corporation;
(j) the Offering Jurisdictionsoffering, in accordance with sale and issuance of the terms and conditions of this Agreement, is, or will be Special Warrants is exempt from the prospectus requirements of the Canadian Securities Laws Laws, and no prospectus will is required to be required, no filed nor are any other document will be documents required to be filed, no proceeding will be required to be taken and no approval, permit, consent, orderproceedings taken, or authorization of any regulatory authority will be required to be approvals, permits, consents or authorizations obtained by the Corporation under the Canadian Securities Laws to issue and deliver permit the Notes to such purchasersoffer, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed Special Warrants by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed Corporation to the Dealers), and may rely, to the extent appropriate Purchasers in the circumstancesOffering Jurisdictions, as to matters of fact, on certificates of an officer except for the filing by the Corporation within 10 days of the Corporation.Closing of a report in Form 45-106F1, prepared in accordance with applicable Canadian Securities Laws, with securities regulators in each applicable Qualifying Provinces and together with the requisite filing fees; and
(bk) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such other matters as the Dealers Agents’ legal counsel may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or request prior to the Time of Closing;
(ii2) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made The Agents receiving a favourable legal opinion at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than dated the Closing Date, from: (i) Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel to the Pacific Road Entities, as to matters governed by the laws of Ontario as set forth in this Section 6(2); and (ii) at the Time of Closing dated the Closing Date, from local counsel with respect to matters in Australia and Belgium, which counsel in turn may rely as to matters of fact on certificates of officers or of public officials, to the effect, or substantially to the effect set forth below, in each case they will be true subject to customary assumptions and correct in all material respects as qualifications:
(a) each Pacific Road Entity has been validly organized, is subsisting under the laws of that date onlyits jurisdiction of formation and has the capacity to enter into and perform its obligations under the Documents and to complete the transactions contemplated by the Documents;
(iiib) all necessary corporate action has been taken to authorize the execution and delivery by each of Pacific Road Entities of the Documents and the performance by each of the Pacific Road Entities of its obligations thereunder, and the Documents have been duly executed and delivered by each Pacific Road Entity and constitute a legal, valid and binding obligation of each Pacific Road Entity enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors' rights generally, that specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction, that rights of indemnity and/or contribution may be limited by applicable laws and that provisions purporting to sever prohibited or unenforceable provisions without affecting the enforceability of the remainder of the agreement may be limited by applicable laws; and
(c) the execution and delivery of the Documents by each of the Pacific Road Entities and the performance of its obligations thereunder, do not and will not conflict with and do not result in a breach of:
(i) any terms, conditions or provisions of the constating documents of such Pacific Road Entity; or
(ii) any law applicable to such Pacific Road Entity;
(3) At the Time of Closing, the Agents and the Pacific Road Entities shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Mexican counsel for the Corporation, in form and substance satisfactory to counsel for the Agents acting reasonably, as to the Corporation’s Mexican subsidiaries and as to the title and ownership interest of the Corporation and its subsidiaries of the San Francisco Gold Mine and its other Mexican properties;
(4) The Agents having received certificates at the Time of Closing dated the Closing Date, signed by any senior officer or director of the Corporation and by any director or officer of each of the Pacific Road Entities, in form and content satisfactory to the Agents and their counsel, acting reasonably, including with respect to:
(a) the constating documents;
(b) the resolutions or similar authorizations of the Documents and the other transactions contemplated by the Documents; and
(c) the incumbency and signatures of its signing officers;
(5) The Corporation having delivered to the Agents, at the Time of Closing, a certificate of compliance under applicable law for the Corporation, dated within two (2) days of the such closing date;
(6) The Agents not having exercised any rights of termination set forth in Section 11;
(7) At the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Special Warrants or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened in Canada;
(iv) since the respective dates of the Disclosure Materials8) The Subscription Agreements, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company each Pacific Road Entity in form and substance satisfactory to the DealersAgents and their counsel, acting reasonably;
(f9) evidence The Special Warrant Indenture shall have been executed and delivered by the Special Warrant Agent, the Corporation and each Pacific Road Entity in form and substance satisfactory to the Dealers that the Corporation’s board of directors has authorized Agents and approved this Agreement and the Trust Indenture andtheir counsel, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; andacting reasonably;
(g10) all actions All action required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicableeach Pacific Road Entity, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary resolutions, if applicable, and all requisite filings filing with governmental authorities, will any Governmental Authority or Securities Commission shall have occurred at or prior to the Time of Closing so as to:to validly authorize the execution of the Documents and to sell and distribute the Special Warrants;
(i11) execute and deliver this Agreement and all other documents contemplated under On or before the Time of Closing, the Pacific Road Entities having deposited the Common Shares with the Special Warrant Agent in accordance with Section 2(7) of this Agreement; and
(ii12) createThe Agents having received at the Time of Closing, issue such further certificates, opinions of counsel and sell other documentation from the Notes in accordance with Corporation or the provisions of this Agreement and Pacific Road Entities as may be contemplated herein or as the Trust IndentureAgents or their counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters under this Agreement to purchase the Offered Securities at the Closing Time and at any Option Closing Time shall be subject to the satisfaction of each of the following conditions:conditions (it being understood that the Underwriters may waive in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to their rights in respect of any other of the following terms and conditions or any other or subsequent breach or non-compliance of the Corporation, provided that to be binding on the Underwriters any such waiver or extension must be in writing and signed by each of them):
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers Corporation (who may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on provide the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation existing under the CBCA and has not been dissolved under the CBCA;
(b) at the Time Corporation has the corporate power and corporate capacity under the CBCA and the constating documents of Closingthe Corporation to (i) carry on its Business and activities and to own, lease and operate its properties and Business Assets, as described in the Prospectus, (ii) execute and deliver this Agreement, the Dealers Offering Documents, the Warrant Indenture and the Broker Warrant Certificates, as applicable, and perform its obligations thereunder, (iii) create, offer, issue and sell the Offered Securities, (iv) create, offer, issue and deliver the Broker Warrants, and (iv) grant the Over-Allotment Option to the Underwriters;
(c) as to the authorized share capital of the Corporation and that the Prospectus describes, in all material respects, the attributes of the Common Shares and preferred shares of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates, and the performance by the Corporation of its obligations under this Agreement, the Warrant Indenture and the Broker Warrant Certificates, and this Agreement, the Warrant Indenture and the Broker Warrant Certificates have been duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation, enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement and the Warrant Indenture may be limited by Applicable Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Preliminary Prospectus, the Final Prospectus, the U.S. Memorandum and any Supplementary Material and the filing of such documents, as applicable, under Canadian Securities Laws;
(f) the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates and the performance by the Corporation of its obligations thereunder, including the issuance, sale and delivery of the Offered Securities, the issuance and delivery of the Broker Warrants and the grant of the Over-Allotment Option in accordance with this Agreement, the Warrant Indenture and the Broker Warrant Certificates, do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under (i) constating documents of the Corporation, (ii) resolutions of the directors or shareholders of the Corporation, or (iii) the CBCA;
(g) the Unit Shares have received been validly issued as fully paid and non-assessable Common Shares;
(h) the Unit Warrants have been validly created and issued as warrants of the Corporation;
(i) the Broker Warrants have been validly created and issued as warrants of the Corporation;
(j) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares and Over-Allotment Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Corporation and, upon the exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares and Over-Allotment Warrants will be duly and validly created, authorized, issued and outstanding and the Over-Allotment Shares will be fully paid and non-assessable shares;
(k) the Warrant Shares, Over-Allotment Warrant Shares and Broker Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, the Over-Allotment Warrants and Broker Warrants, as applicable, in accordance with their respective terms, the Warrant Shares, the Over-Allotment Warrant Shares and the Broker Warrant Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(l) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under Applicable Securities Laws in order to qualify the distribution of the Offered Securities and the Broker Warrant Shares in the Qualifying Jurisdictions by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(m) the issuance of the Warrant Shares and Over-Allotment Warrant Shares issuable upon exercise of the Warrants and the Over-Allotment Warrants will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(n) the issuance of the Broker Warrant Shares issuable upon exercise of the Broker Warrants will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(o) the Corporation is a “reporting issuer” under Canadian Securities Laws in each of the Qualifying Jurisdictions and it is not listed as in default of applicable Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(p) the Unit Shares, the Warrants, the Warrant Shares and the Broker Warrant Shares have been approved for listing on the Exchange, subject to the Corporation fulfilling all of the requirements of the Exchange, including those set forth in any conditional approval letter of the Exchange;
(q) Computershare Investor Services Inc. has been duly appointed as registrar and transfer agent of the Common Shares and as warrant agent under the Warrant Indenture;
(r) subject to the limitations, qualifications and assumptions set out therein, the statements set forth in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(s) the attributes of the Offered Securities and the Broker Warrants conform in all material respects with the description thereof contained in the Final Prospectus; and
(t) the form of Broker Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation, in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably;
(2) the Underwriters receiving legal opinions from counsel to each Subsidiary (who may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials related to each Subsidiary), in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) such Subsidiaries having been incorporated and existing under the Applicable Laws of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and Business Assets and to conduct their Business as currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and having all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective Business as currently conducted;
(3) if any of the Offered Securities are offered or sold in the United States or to, or for the account or benefit of, U.S. Persons, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer, sale and resale of the Notes Offered Securities, provided, in each case, that such offer, sale and resale and delivery of Offered Securities in the United States or to, or for the account or benefit of, U.S. Persons is made in compliance with this Agreement and the terms set out in Schedule “B” hereto and provided further that it is understood that no opinion is expressed as to any subsequent resale of any Offered Securities. In providing the extent governed by foregoing opinion, such counsel may rely upon the laws covenants, representation and warranties of Albertathe Corporation and the Underwriters set forth in this Agreement and Schedule “B” hereto, Ontario or Québec.and upon the covenants, representation and warranties of any purchasers in the United States;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option, the issuance and delivery of the Broker Warrants and the authorization of this Agreement and the Warrant Indenture and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Laws, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Corporation’s Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Former Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(e) hereof;
(8) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by the Corporation or prospects any Subsidiary which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws; and
(f) the Prospectus is true and correct in all material respects and contains no misrepresentation, constitutes full, true and plain disclosure of all material facts relating to the Offered Securities and to the Corporation and its Subsidiaries (taken considered as a whole), whole and does not contain an untrue statement of a material fact or any development involving omit to state a prospective material adverse change, financial or otherwisefact necessary to make the statements therein, in light of the business affairscircumstances in which they were made, operationsnot misleading;
(9) the Underwriters receiving the executed lock-up agreements, assetsin favour of the Underwriters, liabilities (contingent or otherwise) or capital from each director and officer of the Corporation and its Subsidiaries (taken their respective associates in a form satisfactory to the Underwriters as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)required pursuant to Section 8(6) of this Agreement;
(v10) none the Underwriters receiving a certificate from Computershare Trust Company of Canada as to the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation number of Common Shares issued and outstanding as at the time end of business on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or Business Day prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii11) the Acquisition has not lapsed no order, ruling or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.determination havin
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters to purchase the Initial Units at the Closing Time on the Closing Date and to purchase any Additional Units at the Closing Time on an Option Closing Date shall be subject to the satisfaction of the following conditionsfollowing:
(a) the Underwriters will receive at the Closing Time of Closing, a legal opinion addressed to the Corporation will cause its Underwriters and their counsel dated and delivered on the Closing Date from the Company’s Canadian counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to deliver practice), in each case in form and substance satisfactory to the Dealers Underwriters and their counsel, Torys LLPacting reasonably, a favourable legal opinion with respect to the following matters, subject to such reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriters’ counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws of the Province of British Columbia, and has all such matters requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the Dealers case may reasonably request, including, without limiting the generality be) of the foregoing: to Company and, in the existence case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non- assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Subordinate Voting Shares;
(viii) the Company has all necessary corporate power and capacity capacity: (i) to execute and deliver this Agreement and the Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over- Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants issuable upon exercise of the CorporationOver-Allotment Option; and (iv) to issue, sell and deliver the creation, authorization, issue and sale Warrant Shares upon the exercise of the Notes; Warrants;
(ix) all necessary corporate action has been taken by the authorization Company to authorize the execution and delivery of each of the Trust Indenture; that Prospectus and any Supplementary Material and the attributes filing thereof with the Securities Commissions;
(x) the Company has duly authorized, executed and delivered, this Agreement and the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Notes Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of Additional Shares and Additional Warrants upon exercise of the Over- Allotment Option, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are consistent customary of an offering of this nature;
(xi) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over- Allotment Option, the offering, creation (as applicable) issue, sale and delivery of Additional Shares and Additional Warrants upon exercise of the Over- Allotment Option, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated by this Agreement and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of British Columbia and the federal laws of Canada applicable therein;
(xii) if issued, the form and terms of the definitive certificate representing the Subordinate Voting Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the TrusteeBusiness Corporations Act (British Columbia), at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the CorporationCompany and rules, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions by-laws and regulations of the CBCA CSE;
(xiii) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares and the Business Corporations Act duly appointed warrant agent and registrar and transfer agent for the Warrants;
(Ontario); the issuance xiv) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or appropriate regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to preserve or protect qualify the validity or enforceability distribution of the Trust Indenture; Initial Shares and that the offeringInitial Warrants comprising the Initial Units, issuance, sale the Over-Allotment Option and delivery the Additional Shares and the Additional Warrants upon exercise of the Notes Over-Allotment Option in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xv) the issuance by the Corporation to purchasers in Company of the Offering Jurisdictions, Warrant Shares in accordance with and pursuant to the terms and conditions of this Agreement, is, or will be the Warrants and the Warrant Indenture is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus will be required, no or other document will be is required to be filed, no proceeding will is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares;
(xvi) the first trade in Warrant Shares underlying the Warrants is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent, order, consent or authorization of any regulatory authority will be authorities is required to be obtained by the Company under Canadian Applicable Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that Qualifying Jurisdictions to permit such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to trade through registrants registered under Applicable Securities Laws who have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants such laws and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time their registration, provided that (i) such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.trade,
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Initial Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a) at 11.1 the Time of Closing, the Corporation will cause its counsel, Blake, Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly continued and existing under the OBCA and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) at the Time authorized and issued Common Shares of Closingthe Corporation;
(c) the Corporation has the requisite corporate power and authority to enter into this Agreement and to perform its obligations set out herein, and the Agreement has been duly executed and delivered by the Corporation and constitute a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with their terms;
(d) the execution and delivery of this Agreement and the fulfilment of the terms of this Agreement by the Corporation and the issuance, sale and delivery of the Offered Securities, the Dealers grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles and articles of the Corporation, or any applicable Canadian Securities Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution of each of the Offering Documents (and any Prospectus Amendment) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(f) the Initial Shares have received from been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(g) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares been duly and validly, allotted and reserved for issuance by the Corporation and, upon the due exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares will be issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Securities in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(i) subject to the qualifications, limitations and assumptions set out therein, the statements set forth in the Prospectus under the captions “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(j) subject only to the standard listing conditions, the Initial Shares and the Over-Allotment Shares have been conditionally listed or approved for listing on the TSX and NYSE;
(k) TSX Trust Company has been duly appointed as registrar and transfer agent of the Common Shares; and
(l) the attributes of the Initial Shares and the Over-Allotment Shares conform in all material respects with the description thereof contained in the Prospectus; in form and substance acceptable to the Underwriters and their counsel, Torys LLP, acting reasonably.
11.2 the Underwriters receiving a favourable legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters and their counsel, acting reasonably, to be delivered to the Underwriters with respect to:
(a) such Subsidiaries (other than Collective Mining (USA), Inc.) having been incorporated and existing under the Applicable Law of their respective jurisdictions of incorporation;
(b) such Subsidiaries (other than Collective Mining (USA), Inc.) having the corporate capacity and power to such matters own and lease their properties and assets and to conduct their business as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries (other than Collective Mining (USA), Inc.) and to the ownership thereof; and
(d) such Subsidiaries (other than Collective Mining (USA), Inc.) being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and have all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective business as currently conducted;
11.3 the Underwriters receiving a favourable legal opinion in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to be delivered to the Underwriters with respect to the material Mineral Titles comprising the Guayabales Project;
11.4 if any of the Initial Shares or Over-Allotment Shares are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion, dated the Closing Date, of Closing▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special United States counsel for the Corporation, addressed to the Underwriters and in form and substance reasonably satisfactory to the Underwriters, to the effect that no registration is required under the U.S. Securities Act in connection with the offer and sale of the Initial Shares and Over-Allotment Shares in the United States; provided, that such offer, sale and delivery of the Initial Shares and Over- Allotment Shares in the United States is made in compliance with this Agreement and the terms set out in Schedule A hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of any of the Initial Shares or Over-Allotment Shares and provided further that in rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions of other counsel familiar with the applicable laws; and (ii) as to matters of fact, to the extent such counsel deems proper, on (a) certificates or other written statements of officers of the Corporation will deliver and (b) the Underwriters’ Certificate attached hereto as Appendix 1 to Schedule A;
11.5 the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option and the authorization of this Agreement and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
11.6 the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
11.7 the Underwriters receiving an auditor’s “bring down” comfort letter dated the Closing Date from the Corporation’s Auditor, in form and substance satisfactory to the Underwriters, on behalf of the Underwriters, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5.1(c) hereof;
11.8 the Corporation will cause its officers and directors to execute and deliver to the Underwriters signed lock-up agreements, in form and content acceptable to the Underwriters, acting reasonably, on or before the Closing Time, pursuant to which each such person agrees, for a period beginning on the Closing Date and ending 90 days after the Closing Date, not to, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, or otherwise dispose of, or transfer, or announce any intention to do so, any Common Shares, whether now owned directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership, or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise other than pursuant to a take-over bid or any other similar transaction made generally to all of the shareholders of the Corporation, or with the prior written consent of BMO, such consent not to be unreasonably withheld;
11.9 the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, on behalf of the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority or the TSX or NYSE; and
(ivd) since the respective dates Prospectus Supplement is true and correct in all material respects and contains no misrepresentation, constitute full, true and plain disclosure of all material facts relating to the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of Offered Securities and to the Corporation and its Subsidiaries (taken considered as a whole), whole and do not contain an untrue statement of a material fact or any development involving omit to state a prospective material adverse change, financial or otherwisefact necessary to make the statements therein, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital light of the Corporation and its Subsidiaries (taken as a whole)circumstances in which they were made, from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)not misleading;
(v) none 11.10 the Underwriters receiving a certificate from TSX Trust Company as to the number of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation Common Shares issued and outstanding as at the time end of the relevant document was filed that has not since been correctedBusiness Day on the date prior to the Closing Date;
11.11 the Corporation having delivered to the Underwriters evidence of the approval (vior conditional approval) of the Acquisition has not been terminated or amended in any material respectlisting and posting for trading of the Initial Shares and Over-Allotment Shares on the TSX and NYSE, no material provision has been waived subject only to satisfaction by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and of standard listing conditions;
11.12 the Corporation has no reason to believe that the Acquisition will not be completed in accordance complying with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time Closing Time;
11.13 the Underwriters not having exercised any rights of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreementtermination set forth herein; and
(ii) create11.14 the Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Units pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Base Units and the Additional Units, as the case may be) will be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Underwriters receiving favourable legal opinions from Stikeman Elliott LLP, to deliver counsel to the Dealers and their counselCompany (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Torontoacting reasonably, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Units for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the Corporation.auditor or transfer agent of the Company), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Company is a corporation validly incorporated and existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business and to own and lease properties and assets;
(b) at the Time Company has all necessary corporate power and authority to: (i) execute, deliver and perform its obligations under this Agreement; (ii) to issue and sell the Offered Units; (iii) to issue the Compensation Units; and (iv) to grant the Over-Allotment Option;
(c) the authorized and issued capital of Closingthe Company;
(d) all necessary corporate action has been taken by the Company to authorize the execution and delivery of this Agreement and the performance of its obligations thereunder and this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms thereof by the Company and the issuance, sale and delivery of the Offered Units and the Compensation Units and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by- laws of the Company, any resolutions of the shareholders or directors of the Company, or any applicable corporate law or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Offered Units have been validly issued as fully paid and non-assessable securities in the capital of the Company;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Units and the Compensation Units (including the Unit Shares, Unit Warrants, Subsequent Unit Shares, Subsequent Unit Warrants and Subsequent Warrant Shares) in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option to the Underwriters;
(i) subject to the qualifications and assumptions set out therein, the Dealers will statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Eligibility for Investment”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein; and
(j) subject only to the standard listing conditions, the Unit Shares, the Subsequent Unit Shares and the Subsequent Warrant Shares have received from been conditionally approved for listing on the CSE, in form and substance acceptable to the Underwriters and their counsel, Torys acting reasonably;
(2) the Underwriters receiving favourable legal opinions from Stikeman Elliott LLP, a legal opinion counsel to the Company, regarding each Subsidiary in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set out below:
(a) the Subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(b) the Subsidiary having all requisite corporate power and capacity to carry on business and to own and lease properties and assets; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(3) the Underwriters having received certificates dated the Closing DateDate and signed by two senior officers of the Company as may be acceptable to the Underwriters, acting reasonably, in form and substance satisfactory to the DealersUnderwriters, acting reasonably, with respect to such matters as to:
(a) the Dealers may reasonably require relating constating documents of the Company;
(b) the resolutions of the directors of the Company relevant to the distribution Offering Documents, the sale of the Notes to Offered Units, the extent governed by grant of the laws Over-Allotment Option and the authorization of Alberta, Ontario or Québec.this Agreement and the transactions contemplated herein;
(c) at the Time incumbency and signatures of Closingsigning officers for the Company; and
(d) such other matters as the Underwriters may reasonably request.
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation will deliver Company and each of the Subsidiaries, each dated within one Business Day prior to the Dealers Closing Date;
(5) the Underwriters receiving the auditors “bring down” comfort letter dated the Closing Date from the Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letters referred to in Section 4(1)(c) hereof;
(6) the Underwriters receiving a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer Chief Executive Officer and the chief financial officer of the Corporation Chief Financial Officer or such other officers senior officer(s) of the Corporation Company as may be acceptable to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (Company and without personal liability) , after having made due enquiries, that:
(ia) the Corporation representations and warranties of the Company contained in this Agreement, and in any certificates of the Company delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Company has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Units or any other securities of the Company (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus: (i) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation Company on a consolidated basis; and its (ii) no transaction has been entered into by any of the Company or the Subsidiaries (taken which is material to the Company on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials Supplementary Material, as the case may be; and
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as they existed at to render any statement in the respective dates thereof)Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi7) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by Underwriters receiving the Corporation executed lock-up agreements from each of ▇▇▇▇▇ ▇▇▇▇▇ and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇▇ Investors Servicein favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(8) the Underwriters receiving a certificate from Computershare Investor Services Inc. as to the number of Common Shares and the number of warrants of the Company issued and outstanding as at the end of the Business Day on the date prior to the Closing Date;
(9) no order, Inc. ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the Offered Units or any of the Company’s issued securities being issued and no proceeding for such purpose being pending or, to the Notes shall be at least “Baa1” knowledge of the Company, threatened by any securities regulatory authority or the CSE;
(stable10) the Company having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Unit Shares (including such Unit Shares issuable pursuant to the Compensation Units), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” Subsequent Unit Shares and the credit rating issued Subsequent Warrant Shares on the CSE, subject only to satisfaction by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsCompany of standard listing conditions;
(e11) the Supplemental Indentures shall have been executed Company complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i12) execute and deliver this Agreement the Company having delivered to the Underwriters any and all other documents third party consents required in order to complete the Offering as contemplated under this Agreementherein and to apply the proceeds as set forth in the Offering Documents;
(13) the Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Company contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel will request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Company to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Offered Securities and the Over-Allotment Securities, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) The Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, ▇favourable legal opinions from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Securities, and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificate and the performance of its obligations hereunder and thereunder and this Agreement, the Warrant Indenture and the Broker Warrant Certificate have each been duly executed and delivered by the Corporation and constitute a legal, valid and binding obligations of the Corporation enforceable against it in accordance with their respective terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificate and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Securities and the grant of the Over- Allotment Option do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Underlying Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Over-Allotment Securities have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and receipt of payment of the consideration therefor, the applicable Over-Allotment Securities will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) the Underlying Warrants have been duly and validly created and, when issued, will be fully paid and non-assessable Underlying Warrants in accordance with the provisions of the Warrant Indenture;
(j) the Warrant Shares issuable upon the exercise of the Warrants and the Over-Allotment Warrants have been reserved and allotted for issuance and when issued in accordance with the provisions of the Warrant Indenture will be validly issued as fully paid and non- assessable Common Shares;
(k) the Broker Warrants have been duly and validly created and, when issued, will be fully paid and non-assessable Broker Warrants in accordance with the provisions of the Broker Warrant Certificate;
(l) the Underlying Broker Shares issuable upon the exercise of the Broker Warrants have been reserved and allotted for issuance and when issued in accordance with the provisions of the Broker Warrant Certificate will be validly issued as fully paid and non-assessable Common Shares;
(m) the issuance and delivery of the Warrant Shares by the Corporation upon valid exercise of Underlying Warrants and Over-Allotment Warrants is exempt from the prospectus requirements of Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus is required nor are other documents required to be filed, proceeding taken or approval, consent or authorization obtained by the Corporation under Canadian Securities Laws of the Qualifying Jurisdictions to permit the issuance and delivery of the Warrant Shares to Subscribers in the Qualifying Jurisdictions;
(n) the issuance and delivery of the Underlying Broker Shares by the Corporation in the Qualifying Jurisdictions upon valid exercise of Broker Warrants is exempt from the prospectus requirements of Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus is required nor are other documents required to be filed, proceeding taken or approval, consent or authorization obtained by the Corporation under Canadian Securities Laws of the Qualifying Jurisdictions to permit the issuance and delivery of the Underlying Broker Shares to Subscribers in the Qualifying Jurisdictions;
(o) the first trade of the Underlying Securities is exempt from the prospectus requirements of Canadian Securities Laws, and no documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations of regulatory authorities required to be obtained under the Canadian Securities Laws in connection with the first trade by the Underwriters or Substituted Purchasers, as applicable;
(p) the Corporation is a reporting issuer, or its equivalent, in each of the provinces of Alberta, British Columbia, Saskatchewan, Manitoba and Ontario and it is not noted on the list of defaulting reporting issuers maintained by the regulatory authorities in the provinces of Alberta, British Columbia, Saskatchewan, Manitoba or Ontario;
(q) TSX Trust Company, at its principal office located in Toronto, Ontario, has been appointed as the registrar and transfer agent for the Common Shares;
(r) TSX Trust Company, at its principal office located in Toronto, Ontario has been appointed as the Warrant Agent under the Warrant Indenture; and
(s) 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 Canadian Securities Laws to permit the Offered Securities to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over- Allotment Option to the Underwriters;
(t) the statements set forth in the Final Prospectus under the heading “Eligibility for Investment” are true, complete and accurate, subject to the limitations and qualifications set out therein;
(u) subject only to the standard listing conditions, the Listed Securities have been conditionally listed or approved for listing on the TSXV; and
(v) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing; in a form acceptable to counsel to the Underwriters and their counsel, acting reasonably.
(2) if applicable, the Underwriters receiving, at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States counsel for the Corporation, to the effect that registration of the Offered Securities offered and sold in the United States in accordance with this Agreement (including Schedule “A” hereto), if any, will not be required under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriters and their counsel, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.acting reasonably;
(c3) the Underwriters receiving, at the Time of Closing, favourable legal opinions from legal counsel to the Corporation will deliver acceptable to the Dealers Underwriters, regarding each of its subsidiaries in a certificate form acceptable to the Underwriters and their counsel, acting reasonably, to the effect set out below:
(a) the subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(b) the subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the subsidiary and to the ownership thereof;
(4) the Underwriters receiving, at the Time of Closing, an auditors comfort letter dated the Closing Date from Davidson & Company LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(5) a certificate of the Corporation dated the Closing Date, addressed to the Dealers and their counsel, Underwriters and signed on the Corporation's behalf by the chief executive officer its Chief Executive Officer and the chief financial officer of the Corporation Chief Financial Officer or such other senior officers of the Corporation as may be acceptable satisfactory to the DealersUnderwriters, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(ia) the Corporation has complied with and satisfied, in all the covenants and satisfied material respects, all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with or satisfied at or prior to the Closing Date;
(b) the representations and warranties of the Corporation set forth in this Agreement are true and correct at the Closing Date, as if made at such time;
(c) the Due Diligence Session Responses, subject to the qualifications and provisions contained therein, are true and correct in all material respects as at the Closing Date, as if made at such time;
(d) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation, or prohibiting or restricting the distribution of any Securities has been made, or proceedings have been announced, commenced or threatened for the making of any such order, ruling or determination by any securities commission or similar regulatory authority or by any other competent authority, and has not been rescinded, revoked or withdrawn, and, to the knowledge of such officers, no proceedings for such purpose are pending, contemplated or threatened;
(e) the Corporation has made and/or obtained, at or prior to the Time of Closing, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound in respect of the execution and delivery of this Agreement and the consummation of the other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following the Closing Date and other than in respect of the filing of the Preliminary Prospectus and the Final Prospectus); and
(f) such other matters as may be reasonably requested by the Underwriters or their legal counsel.
(6) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 10(4) of this Agreement;
(7) the Underwriters receiving, at the Time of Closing, a certificate from TSX Trust Company as to the number of Common Shares issued and outstanding as at the end of business day on the date prior to the Closing Date;
(8) at the Time of Closing, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the sale of the Offered Securities or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to the knowledge of the Corporation, threatened by any securities regulatory authority or the TSXV;
(9) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Underlying Shares, Underlying Warrants, Warrant Shares and Underlying Broker Shares on the TSXV, subject only to satisfaction by the Corporation of standard listing conditions;
(10) the Corporation complying with all of its covenants and obligations under this Agreement required to be satisfied at or prior to the Time of Closing;
(ii11) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures Warrant Indenture shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f12) evidence satisfactory to the Dealers that the Corporation’s board Underwriters not having exercised any rights of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretotermination set forth herein; and
(g13) all actions required to be taken by or on behalf the Underwriters having received at the Time of Closing such further certificates, opinions of counsel and other documentation from the Corporation and its Subsidiariescontemplated herein, as applicableprovided, including however, that the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at Underwriters or their counsel shall reasonably request any such certificate or document within a reasonable period prior to the Time of Closing so as to:
(i) execute that is sufficient for the Corporation to obtain and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) createsuch certificate, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indentureopinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations following are conditions precedent to the obligation of the Dealers hereunder are subject Agents to complete the satisfaction Closing on the Closing Date and of the following conditionsPurchasers to purchase the Offered Securities, which conditions the Corporation hereby covenants and agrees to use the best efforts thereof to fulfill prior to or at the Closing Time on the Closing Date, and which conditions may be waived in writing in whole or in part by the Agents:
(a) at the Time of ClosingAgents will have received a legal opinion from Canadian counsel to the Corporation, dated and delivered the Corporation will cause its Closing Date, in form and substance satisfactory to the Agents and their legal counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver acting reasonably (and such counsel may rely upon or arrange for separate deliveries of opinions of local counsel where such counsel deems such reliance or delivery proper as to the Dealers laws of any jurisdiction other than the provinces of Ontario, Alberta, British Columbia and their counselQuébec and may rely, Torys LLPas to matters of fact, a favourable legal opinion with respect to all such matters as the Dealers may reasonably requeston certificates of auditors, including, without limiting the generality of the foregoing: to the existence public officials and corporate power and capacity officers of the Corporation; ) which will address substantially the creationfollowing matters:
(i) the Corporation is a “reporting issuer”, authorizationor its equivalent, issue and sale in each of the Notes; the authorization Offering Jurisdictions and it is not listed as in default of any of the Trust Indenture; that Securities Laws in the attributes Offering Jurisdictions;
(ii) the Corporation is a corporation incorporated under the Canada Business Corporations Act, is a valid and subsisting corporation and has not been dissolved, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets;
(iii) the authorized capital of the Notes Corporation consists of an unlimited number of Common Shares, and an unlimited number of preferred shares, issuable in series, of which 44,798,206 Common Shares are consistent outstanding and no preferred shares are outstanding;
(iv) the Corporation is registered as an extra provincial corporation in all material respects the Province of Québec;
(v) each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material is compliant with the description thereof in laws of the Term Sheets; that Province of Québec relating to the form use of global certificate representing the Notes French language;
(vi) each of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, and the execution and filing of each of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, with the Securities Commissions have been approved and authorized by all necessary corporate action on the part of the Corporation, and each of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material has been approved executed by the Corporation and complies with the provisions on behalf of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that Corporation;
(vii) the execution and delivery by the Corporation of, of the Transaction Documents and the performance by the Corporation of its obligations under this Agreement the Transaction Documents has been authorized by all necessary corporate action on the part of the Corporation, and the Trust IndentureTransaction Documents have been duly executed and delivered by the Corporation and each constitutes a legal, including the issuance valid and binding obligation of the Notes, Corporation enforceable against it in accordance with its terms under the laws of the Province of Ontario and the federal laws of Canada applicable therein;
(viii) the execution and delivery of the Transaction Documents by the Corporation and the performance by the Corporation of its obligations hereunder and thereunder do not and constitute or result in a breach of or default under, or after notice or a lapse of time or both, will not result in a breach of or default under, and do not conflict with any of (A) applicable corporate Laws or Securities Laws, the provisions articles and by-laws of the constating documents Corporation or any resolutions of the shareholders or directors (or any committee thereof) of the Corporation;
(ix) all necessary corporate action has been taken by the Corporation to authorize the creation and issue of the Warrants and Compensation Options and the issue of the Flow-Through Shares and the Unit Shares, and the Flow-Through Shares and the Unit Shares are validly issued and outstanding as fully paid and non-assessable Common Shares of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act Warrants are validly created and issued;
(Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is x) all necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes corporate action has been taken by the Corporation to purchasers authorize the reservation, allotment and issuance of the Warrant Shares and, upon the due exercise of the Warrants in accordance with their terms and the payment in full of the exercise price, the Warrant Shares will be validly issued and outstanding as fully paid and non-assessable common shares of the Corporation;
(xi) all necessary corporate action has been taken by the Corporation to authorize the reservation, allotment and issuance of the Compensation Option Shares and, upon the due exercise of the Compensation Options in accordance with their terms and the payment in full for the Compensation Option Shares, the Compensation Option Shares will be validly issued and outstanding as fully paid and non-assessable common shares of the Corporation;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled in order to: (i) qualify the Flow-Through Shares, the Unit Shares and Warrants for distribution to the public in each of the Offering Jurisdictions through registrants appropriately registered under the applicable Securities Laws of each such Offering Jurisdictions and who have complied with all relevant provisions of such laws and the terms of their registrations; (ii) qualify the issue the Compensation Options in the Offering Jurisdictions, and the (iii) qualify the grant of the Over-Allotment Option to the Agents in accordance with the terms Offering Jurisdictions;
(xiii) no prospectus or registration pursuant to the prospectus and conditions registration requirements of this Agreement, is, or the Securities Laws in the Offering Jurisdictions will be exempt from required and no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent or authorization of any Regulatory Authority will be required to be obtained under the prospectus requirements of Canadian Securities Laws in the Offering Jurisdictions to permit the issue and delivery by the Corporation of the Warrant Shares upon the due exercise of the Warrants, including payment of the exercise price thereof, except for such filings, approvals, permits, consents or authorizations which have been obtained;
(xiv) no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, order or authorization of any regulatory authority Regulatory Authority will be required to be obtained under Canadian the Securities Laws in the Offering Jurisdictions to permit the first trade of the Warrant Shares ;
(xv) no prospectus or registration pursuant to the prospectus and registration requirements of the Securities Laws in the Offering Jurisdictions will be required and no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent or authorization of any Regulatory Authority will be required to be obtained under the Securities Laws in the Offering Jurisdictions to permit the issue and deliver delivery by the Notes Corporation of the Compensation Option Shares upon the due exercise of the Compensation Options, including payment of the exercise price, except for such filings, approvals, permits, consents or authorizations which have been obtained;
(xvi) no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order or authorization of any Regulatory Authority will be required to be obtained under the Securities Laws in the Offering Jurisdictions to permit the first trade of the Compensation Option Shares.
(xvii) the TSX-V has conditionally approved the listing of the Flow-Through Shares, the Unit Shares, Warrant Shares and the Compensation Option Shares, subject to the Corporation fulfilling all of the requirements of the TSX-V on or before the applicable time period set forth in the conditional listing approval letter from the TSX-V;
(xviii) the rights, privileges, restrictions and conditions attaching to the Flow-Through Shares, the Unit Shares, the Warrants, the Warrant Shares, the Compensation Options and the Compensation Option Shares are accurately summarized in all material respects in the Final Prospectus;
(xix) the form and terms of the definitive certificates representing the Common Shares have been approved by the board of directors of the Corporation and comply in all material respects with the Canada Business Corporations Act and the rules and policies of the TSX-V;
(xx) Computershare Investor Services Inc. has been duly appointed as the transfer agent and registrar for the Common Shares;
(xxi) Computershare Trust Company of Canada has been duly appointed as warrant agent under the Warrant Indenture;
(xxii) the statements set forth in the Final Prospectus under the caption “Canadian Federal Income Tax Considerations” and “Eligibility for Investment”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(xxiii) the Flow-Through Shares are “flow-through shares” as defined in subsection 66(15) of the Tax Act;
(xxiv) the Flow-Through Shares do not constitute “prescribed shares” for the purpose of Regulation 6202.1 of the regulations to the Tax Act;
(xxv) the expenditures to be renounced in respect of the Flow-Through Shares under the Subscription Agreements will, provided the expenses are fully incurred in the manner and otherwise as covenanted and referenced in the Subscription Agreements, be: (i) expenses described as “certain Québec surface mining or oil and gas exploration expenses”, as such purchasersterm is defined in section 726.4.17.2 of the Taxation Act (Québec) (“Québec Tax Act”); and (ii) expenses included in the exploration base relating to “certain Québec exploration expenses”, as such term is defined in section 726.4.10 of the Québec Tax Act; and (iii) expenses described in paragraphs (a) through (d) of the definition of “flow-through mining expenditure” in subsection 127(9) of the Tax Act; and
(xxvi) such other than matters as the filing Agents may reasonably request in connection with the Offering;
(b) the Agents shall have received favourable legal opinions addressed to the Agents, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to the Corporation in Québec with respect to title to the Properties;
(c) if any of the Units are sold to Persons within the United States or to or for the account or benefit of a Form 45U.S. Person, the Corporation will cause its United States counsel to deliver to the Agents a legal opinion dated as of and delivered on the Closing Date, in form and substance satisfactory to the Agents and its counsel, acting reasonably, to the effect that no registration of the Units under the U.S. Securities Act is required for the offer, sale and delivery of the Units in the United States provided that such offers and sales are made in accordance with this Agreement, including schedule A attached hereto;
(d) the Agents shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agents may agree, certifying for and on behalf of the Corporation, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles and by-106F1 prescribed under NI 45-106 within 10 days after laws of the date Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Notes Offered Securities to be issued and sold by the Corporation and the payment authorization of any fees related thereto. It is understood that such counsel may rely on the opinions other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer signing officers of the Corporation.;
(be) at the Time of Closing, the Dealers will Agents shall have received from their counsel▇▇▇▇▇ Fremeth Star LLP a comfort letter, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersAgents, with respect to such matters as the Dealers may reasonably require relating acting reasonably, bringing forward to the distribution of the Notes date which is two Business Days prior to the extent governed by Closing Date the laws of Alberta, Ontario or Québec.information contained in the comfort letter referred to in section 5(d)(vi);
(cf) the Corporation will have delivered to the Agents, at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, Agents and signed by the chief executive officer and the chief financial officer Chief Executive Officer of the Corporation or such other officers and the Chief Financial Officer of the Corporation as may be acceptable to the Dealers, acting reasonablyCorporation, certifying for and on behalf of the Corporation (without personal liability) thatCorporation, after having made due inquiries, with respect to the following matters:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing, except to the extent that the same have been waived by the Agents pursuant hereto;
(ii) subsequent to the date as at which information is given in the Final Prospectus, no transaction out of the ordinary course of business, material to the Corporation, taken as a whole, has been entered into by the Corporation or its Subsidiaries or has been approved by its management of any of them, which has or would result in a Material Adverse Effect;
(iii) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of at the Time of Closing Closing, with the same force and effect as if made on and as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyby this Agreement;
(iiiiv) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or the Offered Securities has been issued and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial contemplated or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or threatened by any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);regulatory authority; and
(v) none as to such other matters as the Agents may reasonably request; and all of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation those matters will in fact be true and materially correct as at the time the relevant document was filed that has not since been correctedTime of Closing;
(vig) the Acquisition has not Corporation creating, allotting and issuing the Warrants and the Compensation Options, and allotting and issuing the underlying Unit Shares;
(h) the Warrant Indenture shall have been terminated or amended in any material respect, no material provision has been waived executed and delivered by the Corporation and no event has occurred or condition exists which, the Warrant Agent in form and substance satisfactory to the Corporation’s KnowledgeAgents, acting reasonably;
(i) the Flow-Through Shares and Unit Shares will prevent have been listed on the Acquisition TSX-V effective as of the Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, Warrant Shares and the Corporation has no reason to believe that Compensation Option Shares will have been approved for listing on the Separation will not be completed TSX-V upon issuance in accordance with the terms of the Separation AgreementWarrants and Compensation Options, respectively, subject only to the Standard Listing Conditions;
(ixj) there has not been any adverse change the Agents shall have completed and be satisfied, in their sole discretion, acting reasonably, with the assigned ratings on results of their due diligence investigations regarding the Notes by DBRS LimitedCorporation, ▇▇▇▇▇’▇ Investors Serviceits business, Inc. or Fitch Ratings Limited which change is continuing operations and financial condition and market conditions at the Time of Closing, ;
(k) the Agents shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and no rating agency has placed any outstanding as at the date immediately prior to the Closing Date;
(l) the Agents shall have received a certificate of compliance or the securities equivalent in respect of the Corporation issued by the appropriate regulatory authority in each jurisdiction in which the Corporation is incorporated or carries on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in factbusiness;
(dm) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes Agents shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and have received confirmation that the Corporation shall deliver to is a reporting issuer or the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming equivalent in each Qualifying Province not in default of the applicable Securities Laws of such respective ratingsQualifying Province;
(en) the Supplemental Indentures shall Agents will have been executed and delivered by each of the Corporation and the Trust Company received such other certificates, opinions, agreements, materials or documents in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to Agents and their respective legal counsel as the Dealers that the Corporation’s board of directors has authorized Agents and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or their respective legal counsel may reasonably request prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this AgreementClosing; and
(iio) create, issue and sell the Notes Agents not having previously terminated the obligations thereof pursuant to this Agreement. The Corporation will notify the Agents promptly of any event which may cause any of the conditions set out in this section 11 not to be capable of satisfaction in accordance with the provisions of this Agreement and the Trust Indenture.its term
Appears in 1 contract
Conditions of Closing. The obligations of Underwriters' obligation to purchase the Dealers hereunder are Shares pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters will receive, at the Time of Closing, favourable legal opinions dated the Corporation will cause its Closing Date, from the Corporation's special Canadian counsel, Blake, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to deliver in form and substance satisfactory to the Dealers and their counselUnderwriters, Torys LLPacting reasonably, a favourable legal opinion with respect to all such matters as the Dealers may reasonably requestfollowing matters:
(a) the Corporation is a "reporting issuer", includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Jurisdictions and it is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions in those jurisdictions where such lists are maintained;
(b) the Corporation is a corporation validly existing under the laws of the Province of Ontario and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets;
(c) the existence authorized capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preference shares, issuable in series;
(d) the Corporation has all necessary corporate power and capacity to execute and deliver this Agreement and perform its obligations under this Agreement;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Corporation; Canadian Preliminary Prospectus and the creation, authorization, issue Canadian Final Prospectus and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects filing thereof with the description thereof in the Term Sheets; that the form of global certificate representing the Notes Canadian Securities Commissions;
(f) all necessary corporate action has been approved taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been executed and delivered by the Corporation and complies with the provisions constitutes a legal, valid and binding obligation of the Trust Indenture; Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office equitable remedies may be granted in the City discretion of Torontoa court of competent jurisdiction and that enforcement of rights to indemnity, has been duly appointed contribution and waiver of contribution set out in this Agreement may be limited by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that applicable law;
(g) the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance fulfilment of the Notes, terms hereof by the Corporation do not and will not result in a breach of any or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with:
(Ai) the provisions of any law, statute, rule or regulation to which the constating documents Corporation is subject;
(ii) the articles and by-laws of the Corporation, or ;
(Biii) any law resolutions of general application applicable the shareholders or directors of the Corporation; or
(iv) any judgment, order or decree, of which counsel is aware, of any court, governmental agency or body or regulatory authority having jurisdiction over the Corporation in Canada;
(h) the rights, privileges, restrictions and conditions attaching to the Common Shares are accurately summarized in all material respects in the Offering Jurisdictions; Canadian Final Prospectus;
(i) 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 Canadian Securities Laws to permit the Trust Indenture complies Common Shares to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the CBCA terms of such registration;
(j) the form and terms of the definitive certificate representing the Common Shares have been approved by the board of directors of the Corporation and comply in all material respects with the Business Corporations Act (Ontario); ) and the issuance rules of the Notes TSX;
(k) CIBC Mellon Trust Company has been duly appointed as the transfer agent and registrar for the Common Shares and Mellon Investor Services LLC has been duly appointed as co-transfer agent and co-registrar for the Common Shares in the United States; and
(l) the Shares will, on the Closing Date, be qualified investments under the Trust Indenture complies Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans and registered disability savings plans. In connection with the provisions of the CBCA; the reporting issuer status of such opinion, counsel to the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them the Underwriters, acting reasonably, as to the qualification for distribution of the Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements province in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(2) the Underwriters will receive, at the Time of Closing, favourable legal opinions dated the Closing Date from counsel to Goldcorp and the Selling Shareholder, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to the following matters:
(a) each of Goldcorp and the Selling Shareholder is a corporation existing under the laws of the jurisdiction of its incorporation, amalgamation or continuance, as the case may be;
(b) each of Goldcorp and the Selling Shareholder has all requisite corporate power and capacity to execute, deliver and perform its obligations under this Agreement;
(c) all necessary corporate action has been taken by each of Goldcorp and the Selling Shareholder to authorize the execution and delivery of this Agreement and the performance of their respective obligations hereunder and this Agreement has been executed and delivered by each of Goldcorp and the Selling Shareholder and constitutes a legal, valid and binding obligation of each of Goldcorp and the Selling Shareholder, enforceable against each of Goldcorp and the Selling Shareholder in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(d) the execution and delivery of this Agreement, the fulfilment of the terms hereof by each of Goldcorp and the Selling Shareholder and the sale and delivery of the Shares to be sold at the Time of Closing do not and will not result in a breach of or default under, and do not and will not create a state of facts that, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with any of the terms, conditions or provisions of the articles, by-laws or other constating documents or resolutions of the directors or shareholders of Goldcorp or the Selling Shareholder; and
(e) such opinion shall additionally state that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP has participated in the preparation of the Canadian Prospectus, and in conferences with officers and other representatives of the Corporation, representatives of the independent chartered accountants of the Corporation, and representatives of the Underwriters at which the contents of the Canadian Prospectus were discussed, and, although such counsel are not passing upon and do not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Canadian Prospectus, on the basis of the foregoing, no facts have come to such counsel's attention which caused such counsel to believe that:
(A) the Canadian Preliminary Prospectus or any amendment thereto, as of its date, contained a misrepresentation (other than the financial statements and other financial information and the information derived from the reports of or attributed to persons named in the Canadian Preliminary Prospectus under the heading "Interest of Experts", included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment), or
(B) the Canadian Final Prospectus or any amendment thereto, as of its date and as of the Time of Closing, contained a misrepresentation (other than the financial statements and other financial information and the information derived from the reports of or attributed to persons named in the Canadian Final Prospectus under the heading "Interest of Experts", included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment); in a form acceptable to the Underwriters, acting reasonably;
(3) the Underwriters will receive, at the Time of Closing, the Dealers will have received favourable legal opinion dated the Closing Date from their counsel, Torys ▇▇▇▇▇▇ & Whitney LLP, United States counsel for the Corporation, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to the following matters:
(a) pursuant to Rule 467 promulgated under the U.S. Securities Act, the Amended U.S. Registration Statement filed in connection with the distribution and sale of the Shares in the United States is effective under the U.S. Securities Act; the Form F-X was filed with the SEC prior to the effectiveness of the Amended U.S. Registration Statement; the filing of the U.S. Preliminary Prospectus and the U.S. Final Prospectus or any supplement thereto pursuant to the requirements of Form F-10 have been made in the manner and within the time period required by Form F-10; and to such counsel's knowledge no stop order suspending the effectiveness of the Amended U.S. Registration Statement has been issued and, no proceedings for that purpose have been instituted or are pending or threatened by the SEC;
(b) the Form F-X appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act and rules and regulations promulgated thereunder;
(c) the Amended U.S. Registration Statement and the U.S. Final Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement thereto (in each case, other than the financial statements and other financial information and the information derived from the reports of or attributed to persons named in the Final U.S. Prospectus under the heading "Interest of Experts", included or incorporated by reference therein, as to which such counsel need not comment) appear on their face to be appropriately responsive, in all material respects, to the requirements of Form F-10;
(d) such counsel does not know of any contract or document required to be filed as an exhibit to the Amended U.S. Registration Statement or the U.S. Final Prospectus that has not been filed as required;
(e) no consent, approval, authorization, license, order, or decree of, and no registration, qualification or filing with or notice to any court or governmental authority or agency of the United States or the State of New York, other than those required under state securities and blue sky laws (as to which such counsel need express no opinion) and other than as have been obtained under the U.S. Securities Act is necessary or required in connection with, and no law, rule or regulation of the United States or the State of New York will be violated or contravened by (i) the due authorization, execution and delivery of this Agreement, (ii) the distribution, sale and delivery of the Shares or (iii) the performance of their respective obligations under this Agreement, in each case by the Corporation, Goldcorp or the Selling Shareholder;
(f) the statements in the U.S. Preliminary Prospectus, Disclosure Package and the U.S. Final Prospectus under the caption "Certain United States Federal Income Tax Considerations" insofar as such statements summarize legal matters discussed therein have been reviewed by such counsel and are accurate and fair summaries of such legal matters in all material respects;
(g) the Corporation is not an "investment company" or an entity "controlled" by an "investment company" as such term is defined in the Investment Company Act of 1940;
(h) such opinion shall additionally state that ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP has participated in the preparation of the Initial U.S. Registration Statement, the U.S. Preliminary Prospectus, the Disclosure Package, the Amended U.S. Registration Statement, the U.S. Final Prospectus, and in conferences with officers and other representatives of the Corporation, representatives of the independent chartered accountants of the Corporation, and representatives of the Underwriters at which the contents of the Initial U.S. Registration Statement, the U.S. Preliminary Prospectus, the Disclosure Package, the Amended U.S. Registration Statement and the U.S. Final Prospectus were discussed, and, although such counsel has not independently verified and is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Initial U.S. Registration Statement, the U.S. Preliminary Prospectus, the Disclosure Package, the Amended U.S. Registration Statement or the U.S. Final Prospectus (except with respect to those matters to the extent set forth in opinion (f) above), on the basis of the foregoing, no facts have come to such counsel's attention which caused such counsel to believe that:
(A) the Disclosure Package, as of the Applicable Time (other than the financial statements and other financial information and the information derived from the reports of or attributed to persons named in the Final U.S. Prospectus under the heading "Interest of Experts", included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment), included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or
(B) the Amended U.S. Registration Statement (other than the financial statements and other financial information and the information derived from the reports of or attributed to persons named in the Final U.S. Prospectus under the heading "Interest of Experts", included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment) at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading, or
(C) the U.S. Final Prospectus, as amended or supplemented prior to the Time of Closing (other than the financial statements and other financial information and the information derived from the reports of or attributed to persons named in the Amended U.S. Registration Statement under the heading "Interest of Experts", included or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment), at the time the U.S. Final Prospectus was issued, at the time any such amended or supplemented prospectus was issued, or at the Time of Closing, included or includes an untrue statement of a material fact or omitted or omits 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;
(4) the Underwriters will receive, at the Time of Closing, a favourable legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, acting reasonably, from Québec counsel to the Corporation, BCF LLP, regarding compliance with the laws of Québec relating to the use of the French language in connection with the documents (including the Canadian Preliminary Prospectus, the Canadian Final Prospectus and any Supplementary Material, other than with respect to such matters as the Dealers may reasonably require relating Financial Information therein) to the distribution of the Notes be delivered to the extent governed by the laws of Alberta, Ontario or purchasers in Québec.;
(c5) the Underwriters will receive, at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(legal opinions f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Conditions of Closing. The obligations of Underwriters' obligation to purchase the Dealers hereunder are Offered Securities pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a1) The Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely on, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporationcircumstances, or (B) any law of general application applicable in alternatively provide directly to the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorizationUnderwriters, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Securities, and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the Broker Warrant Certificate and the performance of its obligations hereunder and thereunder and this Agreement and the Broker Warrant Certificate have each been duly executed and delivered by the Corporation and constitute a legal, valid and binding obligations of the Corporation enforceable against it in accordance with their respective terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the Broker Warrant Certificates and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Securities and the grant of the Over-Allotment Option do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles and the articles of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any British Columbia law and federal law applicable therein;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable Common Shares;
(h) the Additional Offered Shares have been allotted and reserved for issuance and upon exercise of the Over-Allotment Option and receipt of payment of the consideration therefor, the applicable Additional Offered Shares will be validly issued as fully paid and, if applicable, non-assessable Common Shares;
(i) the Broker Warrants have been duly and validly created and issued in accordance with the provisions of the Broker Warrant Certificate;
(j) the Broker Warrant Shares issuable upon the exercise of the Broker Warrants have been reserved and allotted for issuance and when issued in accordance with the provisions of the Broker Warrant Certificate will be validly issued as fully paid and non-assessable Common Shares;
(k) 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 Canadian Securities Laws to permit the Offered Securities to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over- Allotment Option to the Underwriters;
(l) the issuance and delivery of the Broker Warrant Shares by the Corporation in the Qualifying Jurisdictions upon valid exercise of Broker Warrants in accordance with the terms and conditions of the Broker Warrant Certificates is exempt from the prospectus requirements of Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus is required nor are other documents required to be filed, proceeding taken or approval, consent or authorization obtained by the Corporation under Canadian Securities Laws of the Qualifying Jurisdictions to permit the issuance and delivery of the Broker Warrant Shares to the holders thereof in the Qualifying Jurisdictions;
(m) the first trade of the Broker Warrant Shares is exempt from the prospectus requirements of Canadian Securities Laws, and no documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations of regulatory authorities required to be obtained under the Canadian Securities Laws in connection with the first trade by the Underwriters, provided that the trade is not a control distribution as defined in National Instrument 45-102 Resale of Securities;
(n) the Corporation is a reporting issuer, or its equivalent, in each of the Provinces of Canada other than Quebec and it is not noted on the list of defaulting reporting issuers maintained by the regulatory authorities in those Provinces;
(o) National Securities Administrators Ltd., at its principal office located in Vancouver, British Columbia, has been appointed as the registrar and transfer agent for the Common Shares;
(p) the statements set forth in the Final Prospectus under the heading "Eligibility for Investment" are true, complete and accurate, subject to the limitations and qualifications set out therein;
(q) subject only to the standard listing conditions, the Listed Securities have been conditionally listed or approved for listing on the TSXV; and
(r) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing; in a form acceptable to counsel to the Underwriters and their counsel, acting reasonably.
(2) if applicable, the Underwriters receiving, at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that registration of the Offered Securities offered and sold in the United States in accordance with this Agreement (including Schedule "A" hereto), if any, will not be required under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriters and their counsel, acting reasonably;
(3) the Underwriters receiving, at the Time of Closing, favourable legal opinions from legal counsel to the Corporation acceptable to the Underwriters, regarding each of its Subsidiaries in a form acceptable to the Underwriters and their counsel, acting reasonably, to the effect set out below:
(a) the Subsidiary having been incorporated and existing under its jurisdiction of incorporation;
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(4) the Underwriters receiving, at the Time of Closing, an auditors comfort letter dated the Closing Date from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(5) a certificate of the Corporation dated the Closing Date, addressed to the Underwriters and signed on the Corporation's behalf by its Chief Executive Officer and Chief Financial Officer or such other senior officers of the Corporation satisfactory to the Underwriters, acting reasonably, certifying that:
(a) the Corporation has complied with respect and satisfied, in all material respects, all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Date;
(b) the representations and warranties of the Corporation set forth in this Agreement are true and correct at the Closing Date, as if made at such matters time;
(c) the Due Diligence Session Responses, subject to the qualifications and provisions contained therein, are true and correct in all material respects as at the Dealers may reasonably require relating to Closing Date, as if made at such time;
(d) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation, or prohibiting or restricting the distribution of any securities has been made, or proceedings have been announced, commenced or threatened for the Notes making of any such order, ruling or determination by any securities commission or similar regulatory authority or by any other competent authority, and has not been rescinded, revoked or withdrawn, and, to the extent governed knowledge of such officers, no proceedings for such purpose are pending, contemplated or threatened;
(e) the Corporation has made and/or obtained, at or prior to the Time of Closing, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound in respect of the execution and delivery of this Agreement and the consummation of the other transactions contemplated hereby (subject to completion of filings with certain regulatory authorities following the Closing Date and other than in respect of the filing of the Preliminary Prospectus and the Final Prospectus); and
(f) such other matters as may be reasonably requested by the laws of Alberta, Ontario Underwriters or Québectheir legal counsel.
(c6) the Underwriters receiving, at the Time of Closing, a certificate from National Securities Administrators Ltd. as to the number of Common Shares issued and outstanding as at the end of business day on the date prior to the Closing Date;
(7) at the Time of Closing, no order, ruling or determination having the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer effect of ceasing or suspending trading in any securities of the Corporation or such other officers prohibiting the sale of the Corporation as may be acceptable Offered Securities or any of the Corporation's issued securities being issued and no proceeding for such purpose being pending or, to the Dealers, acting reasonably, certifying for and on behalf knowledge of the Corporation (without personal liability) that:Corporation, threatened by any securities regulatory authority or the TSXV;
(i8) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Listed Securities on the TSXV, subject only to satisfaction by the Corporation of standard listing conditions;
(9) the Corporation has complied complying with all the of its covenants and satisfied all the terms and conditions of obligations under this Agreement and the Trust Indenture on its part required to be complied with and satisfied at or prior to the Time of Closing;
(ii10) the representations and warranties Underwriters not having exercised any rights of termination set forth herein; and
(11) the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made Underwriters having received at the Time of Closing after giving effect to the transactions contemplated herebysuch further certificates, except for representations opinions of counsel and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of documentation from the Corporation and its Subsidiaries (taken as a whole)contemplated herein, or any development involving a prospective material adverse changeprovided, financial or otherwisehowever, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on Underwriters or prior to the Outside Date;
(vii) the Acquisition has not lapsed their counsel shall reasonably request any such certificate or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of document within a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or reasonable period prior to the Time of Closing so as to:
(i) execute that is sufficient for the Corporation to obtain and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) createsuch certificate, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indentureopinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Offered Securities) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, to deliver legal counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and who may rely, to the extent appropriate in the circumstances, on the opinions of local legal counsel acceptable to ▇▇▇▇▇▇▇▇ LLP, legal counsel to the Underwriters, as to matters of fact, on certificates of an officer the qualification of the Corporation.
(b) at Offered Securities for sale to the Time of Closingpublic, the Dealers will have received from their counselgrant of the Over-Allotment Option, Torys LLP, a legal opinion dated and the Closing Dateissuance of the Broker Warrants and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice), in form and substance satisfactory to the DealersUnderwriters and their legal counsel, acting reasonably, with respect to such matters as the Dealers Underwriters may reasonably require request relating to the distribution Offering, and as to all other legal matters as the Underwriters and their legal counsel may reasonably request, including corporate and legal matters, including with respect to the Material Subsidiary, and compliance with Canadian Securities Laws in relation to the creation, issuance, sale and delivery of the Notes Offered Securities in all cases as are customary for transactions like in nature to the extent governed by the laws of Alberta, Ontario or QuébecOffering.
(c2) the Underwriters receiving, at the Time of Closing, the favourable legal opinion dated the Closing Date from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special United States legal counsel the Corporation, to the effect that registration of the Offered Securities offered and sold in the United States in accordance with this Agreement (including Schedule “B” hereto) will not be required under the U.S. Securities Act, in form and substance satisfactory to the Underwriters and their legal counsel, acting reasonably;
(3) the Corporation will deliver have caused a favourable title opinion on the Mineral Property to be delivered by legal counsel addressed to the Dealers Underwriters acceptable in all reasonable respects to the Underwriters, including in respect of the following matters:
(a) the registered ownership of the mining claims, concessions, leases, patents and real properties forming part of the Mining Rights;
(b) the good standing of the Mining Rights under applicable legislation; and
(c) the description of all registered encumbrances or liens relating to the Mining Rights;
(4) the Underwriters having received certificates dated the Closing Date and signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other senior officer(s) of the Corporation as the Underwriters may agree, certifying for and on behalf of the Corporation, to the best of the knowledge, information and belief of the persons so signing, after having made due enquiries, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option, the issuance of the Broker Warrants and underlying securities and, as applicable, the authorization of this Agreement, the Warrant Indenture, the Broker Warrant Certificates and the transactions contemplated herein; and; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Material Subsidiary, each dated within one (1) Business Day prior to the Closing Date;
(6) the Underwriters receiving a “long-form” comfort letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP dated no later than June 17, 2014 on or before by 5:00 p.m. on June 17, 2014 (Vancouver time) (with the requisite procedures to be completed by such auditor within two (2) Business Days of the date of such letter), in form and substance satisfactory to the Underwriters, acting reasonably, addressed to the Underwriters and the directors and officers of the Corporation, with respect to certain financial and accounting information relating to the Corporation in the Prospectus, including all Documents Incorporated by Reference, which letter shall not identify any material deficiency in the such financial and accounting information, and which letter shall be in addition to the auditors’ report incorporated by reference in the Prospectus;
(7) the Underwriters receiving, at the Time of Closing, a “bring down” comfort letter dated the Closing Date from the auditors of the Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Lead Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 10(6) hereof;
(8) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer Chief Executive Officer and the chief financial officer of the Corporation Chief Financial Officer or such other officers senior officer(s) of the Corporation as may be acceptable to the Dealers, acting reasonablyLead Underwriter, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Securities or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Prospectus or which would result in the Prospectus not complying with applicable Canadian Securities Laws;
(d) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect (or, if qualified by materiality or Material Adverse Effect, in all respects) as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby;
(9) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(10) the Underwriters receiving, except for representations at the Time of Closing, a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific business day on the date other than prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii11) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Securities or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSXV;
(iv12) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materialsapproval (or conditional approval) of the listing and posting for trading of the Unit Shares, there has been no material adverse changeWarrant Shares, financial or otherwiseBroker Unit Shares and Broker Shares on the TSXV, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional listing approval letters of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)TSXV;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi13) the Acquisition has Underwriters not been terminated or amended in having exercised any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms rights of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notestermination set forth herein; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d14) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” Corporation complying with all of its covenants and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.Closing;
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Underwriters to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Securities at the Closing Time, which conditions the Company covenants and agrees to use commercially reasonable efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Underwriters:
(a) the Underwriters receiving at the Closing Time of Closing, the Corporation will cause its counsel, Blake, ▇favourable legal opinions from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Gervais LLP, to deliver to Canadian counsel for the Dealers Company , as set forth below:
(i) the Company is a valid and their counselexisting company incorporated under the Laws of the Province of British Columbia and is, Torys LLP, a favourable legal opinion with respect to all such matters the filing of annual reports with the British Columbia Registrar of Companies, in good standing as of this date;
(ii) The Company is:
a. a “reporting issuer” in the Dealers may reasonably requestProvince of British Columbia and is not included on the list of defaulting issuers maintained by the British Columbia Securities Commission;
b. a “reporting issuer” in the Province of Alberta, includingand is not noted in default in the reporting issuer list maintained by the Alberta Securities Commission;
c. a “reporting issuer” in the Province of Ontario and is not noted in default in the reporting issuer list maintained by the Ontario Securities Commission;
d. a “reporting issuer” in the Province of Saskatchewan and is not included on the list of defaulting issuers maintained by the Financial and Consumer Affairs Authority of Saskatchewan;
e. a “reporting issuer” under the Securities Acts of each of New Brunswick, without limiting the generality Nova Scotia, Newfoundland and Labrador and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island and is not noted by any of the foregoing: securities commissions of each of New Brunswick, Nova Scotia, Newfoundland and Labrador and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island as being in default of applicable Securities Laws in each of New Brunswick, Nova Scotia, Newfoundland and Labrador and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island; and
f. a “reporting issuer” in the Province of Manitoba and is not noted as being in default of certain requirements of the Securities Laws of the Province of Manitoba and its securities (including the Units) are not noted as being the subject of a general cease trade order issued by the Manitoba Securities Commission under subsection 148(1) of the Securities Act (Manitoba);
(iii) the authorized capital of the Company consists of an unlimited number of Common Shares, of which 170,051,127 are issued and outstanding as non-assessable shares immediately prior to the existence and issuance of the Units;
(iv) the Company has all necessary corporate power and capacity to carry on its business, in each case as described in the Final Prospectus;
(v) the execution and delivery by the Company of the Corporation; Offering Documents and the creationperformance by it of its obligations thereunder have been duly authorized by all necessary corporate action on the Company’s part;
(vi) the Company has duly approved, authorization, issue executed and sale delivered each of the Notes; Offering Documents;
(vii) the authorization Company has all necessary corporate power and capacity to execute and deliver and to perform its obligations under the Offering Documents and to issue the Offered Securities, the Warrant Shares and the Additional Warrant Shares;
(viii) the issuance of the Trust Units and Additional Units has been duly authorized by all necessary corporate action on the part of the Company and, on receipt by the Company of the consideration for the Units, the Unit Shares and Additional Unit Shares will be validly issued as fully-paid and non-assessable shares in the capital of the Company;
(ix) the Warrants and Additional Warrants are in a form contemplated by the Warrant Indenture; that , and have been duly and validly authorized, created, issued and executed by the Company and, when duly certified and delivered by the Warrant Agent, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and the terms of the Warrant Indenture. The Warrant Shares and Additional Warrant Shares have been reserved and authorized and allotted for issuance, and upon the payment therefor and the issue thereof upon exercise of the Warrants and Additional Warrants in accordance with the provisions of the Warrant Indenture, the Warrant Shares and Additional Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Company;
(x) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms;
(xi) the execution and delivery by the Company of each of the Transaction Documents and the performance by it of its obligations thereunder do not breach any provisions of, or constitute a default under (i) its Notice of Articles and Articles or (ii) to the best of our knowledge, any judgment, order, decree of any court, agency, board, tribunal, arbitrator or other authority to which the Company is subject (xii) the attributes of the Notes Offered Securities are consistent in all material respects with the description thereof of the Offered Securities in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingFinal Prospectus;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations closing of the Dealers hereunder are Offering shall be subject to the satisfaction accuracy of the representations and warranties of the Company contained in this Agreement as of the date of this Agreement and as of the Closing Time as if made at and as of the Closing Time, to the accuracy of the statements of the officers of the Company and others made pursuant to this Section 12, to the performance by the Company of its covenants and agreements under this Agreement and to the following additional conditions:
(a) at The Agents shall have received an opinion, dated the Time Closing Date, of ClosingCatalyst Corporate Finance Lawyers, counsel for the Corporation will cause its counsel, Blake, ▇▇▇Company in form and substance reasonably satisfactory to ▇▇▇▇ & ▇▇▇▇▇▇▇ Berlis LLP, counsel for the Agents, and as to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may be reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved required by the Corporation and complies with the provisions of the Trust IndentureAgents; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is it being understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, rely: (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, i) to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer the Company executed on its behalf by the Chief Executive Officer and the Chief Financial Officer (or such other officers of the CorporationCompany acceptable to the Agents, acting reasonably) and on certificates of Pacific Corporate Trust Company, the registrar and transfer agent for the Common Shares; (ii) on the opinions of local counsel (signed copies of which shall be addressed to and delivered to the Agents and their counsel) reasonably acceptable to the Agents' counsel as to the qualification of the Offered Units, the Optioned Units and the Greenshoe Units for sale to the public and as to other matters in the Qualifying Jurisdictions applicable to the offering of the Offered Units, the Optioned Units and the Greenshoe Units and as to other matters of law under the laws of Alberta, Manitoba, Ontario and Quebec or the laws of Canada applicable therein; and (iii) as to matters of fact not independently established, on certificates of the Auditors; and that the Agents' counsel may rely on the opinion of the Company's counsel as to matters which relate specifically to the Company and to the securities laws of the Province of British Columbia.
(b) at The Agents shall have received an opinion from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to the Time of ClosingCompany, the Dealers will Agents and their respective counsel to the effect that registration under the 1933 Act is not required for the offer and sale of the Offered Securities pursuant to this Agreement.
(c) The Agents shall have received incumbency certificates dated the Closing Date including specimen signatures of the Chief Executive Officer and any other officer of the Company signing this Agreement or any document delivered hereunder.
(d) The Agents shall have received from their counsel, Torys LLP, the Auditors a legal opinion letter dated the Closing Date, Date in form and substance satisfactory to the DealersAgents to the effect that, in all material respects, as of the date of such letter (or, with respect to such matters involving changes or developments since the respective dates as of which specified financial information is given in the Dealers may reasonably require relating Prospectus, as of a date not more than two business days prior to the distribution date of such letter) the Notes conclusions and findings of such firm with respect to the extent governed financial statements, financial information and other matters covered by its letter referred to in Subparagraph 6(c)(iv) hereof are confirmed. References to the laws Prospectus in this Subparagraph shall include any Supplementary Material at the date of Alberta, Ontario or Québecsuch letter.
(ce) at the Time of ClosingThe Agents shall have received a certificate, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to Date, of the Dealers and their counsel, and signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Company (or such other officers of the Corporation as may be Company acceptable to the DealersAgents, acting reasonably), certifying for and on behalf in their capacity as officers of the Corporation (without personal liability) Company, addressed to the Agents to the effect that, to the best of their knowledge, information and belief, after due enquiry:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein Company in this Agreement are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will Time and the Company has performed all covenants and agreements and satisfied all conditions on its part to be true and correct performed or satisfied in all material respects as of that date onlyat or prior to the Closing Time;
(iiiii) no order, ruling or determination having the effect of ceasing preventing the trading use of the Prospectus or suspending the sale or ceasing, suspending or restricting the trading of Common Shares in any of the Notes Qualifying Jurisdictions has been issued or made by any stock exchange, securities commission or regulatory authority and is continuing in effect and no proceedings proceedings, investigations or enquiries for such that purpose have been instituted or are pending or, pending;
(iii) the memorandum and articles of the Company attached to the best of certificate are full, true and correct copies, unamended, and in effect on the knowledge of such officers, threateneddate thereof;
(iv) the minutes or other records of various proceedings and actions of the Company's Board of Directors attached to the certificate relating to the Offering are full, true and correct copies thereof and have not been modified or rescinded as of the date thereof;
(v) since the respective dates of the Disclosure Materialsdate hereof, there has been no material adverse change, financial or otherwise, change in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the NotesCompany; and
(xvi) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel Agents may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;.
(f) evidence satisfactory The Common Shares forming part of the Units and the Common Shares issuable upon the due exercise of the Warrants and the Compensation Warrants shall have been approved for listing as at 4:01 p.m. (Toronto time) on the business day immediately preceding Closing and posted for trading on the Exchange as at the opening of business on the Closing Date, subject only to the Dealers that the Corporation’s board official notices of directors has authorized issuance and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance fulfilment of such other conditions of the Notes and all matters relating thereto; andExchange as may only be fulfilled after the Closing Time.
(g) The Acquisition shall have been approved by the Company's shareholders and all actions required matters pertaining to the Acquisition shall be completed in escrow in accordance with and on the terms and conditions set forth in the Merger Agreement, subject only to the completion of the Offering for gross proceeds of a minimum of US$10,000,000.
(h) The Agents shall have received certificates, issued under section 72(8) of the Securities Act (Ontario) and similar provisions of the Securities Laws of the other Qualifying Jurisdictions where applicable stating that the Company is not in default under the Securities Act (Ontario) and the applicable Securities Laws of the other Qualifying Jurisdictions, respectively.
(i) The Agents shall have received a certificate from Pacific Corporate Trust Company stating the issued capital of the Company as at the close of business on the day immediately preceding the Closing Date.
(j) The Agents shall have had access to the Company's management and the right to conduct due diligence satisfactory to the Agents, in their sole discretion, prior to filing the Preliminary Prospectus and, if applicable, any amendments thereto, and the right to update such due diligence prior to the filing of the Prospectus and, if applicable, any amendments thereto, and shall not have identified material adverse information which, as at the date hereof, had not been widely disseminated to the public. It is understood that the Agents may waive in whole or in part or extend the time for compliance with any of such terms and conditions without prejudice to its rights in respect of any other of the foregoing terms and conditions or any other or subsequent breach or noncompliance, provided that to be taken binding on the Agents any such waiver or extension must be in writing and signed by or each of them other than the delivery of the opinion referred to in Subparagraph 12(a) above which may be waived by Sprott on behalf of the Corporation and its SubsidiariesAgents, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indentureorally.
Appears in 1 contract
Conditions of Closing. The obligations of the Dealers hereunder are subject to Agents under this Agreement shall be conditional upon the satisfaction or waiver of each of the following conditionsconditions prior to the Closing, it being understood that the Agents may waive, in whole or in part, or extend the time for compliance with, any of such conditions without prejudice to the rights of the Agents in respect of any such conditions or any other or subsequent breach or non-compliance, provided that to be binding, any such waiver or extension must be in writing:
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, Agents receiving a legal opinion from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Agents as to the qualification of the Offered Shares for sale to the public in Canada and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date), in form and substance satisfactory acceptable to the DealersAgents and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is incorporated and exists under the Canada Business Corporations Act and has all requisite corporate power and capacity to carry on its business as currently conducted and to own and lease properties and assets;
(b) as to the authorized and issued capital of the Corporation, prior to the issue of the Offered Shares;
(c) the Corporation has all necessary corporate power, capacity and authority to (i) execute, deliver and perform its obligations under this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates, as applicable, (ii) create, issue and sell the Offered Shares, and (iii) issue the Corporate Finance Shares and the Agents’ Warrants;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates, as applicable, and the performance of its obligations thereunder, each of this Agreement the Subscription Agreements and the Agents’ Warrant Certificates have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates may be limited by Applicable Law;
(e) the execution and delivery of this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates, the fulfilment of the terms of this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates by the Corporation, and the (i) issuance, sale and delivery of the Offered Shares, and (ii) issuance and delivery of the Corporate Finance Shares and the Agents’ Warrants, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, the Canada Business Corporations Act or any applicable Canadian Securities Laws;
(f) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(g) the Corporate Finance Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Agents’ Warrants have been validly created and issued by the Corporation;
(i) the Penalty Shares have been duly and validly authorized, allotted and reserved for issuance, and, if issued, upon issuance as liquidated damages, the Penalty Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(j) the Agents’ Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Agents’ Warrants in accordance with their terms, the Agents’ Warrant Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) the offering, sale and issuance of the Offered Shares through the Agents to the Subscribers resident in the Selling Jurisdictions in Canada and the issuance and delivery of the Corporate Finance Shares and the Agents’ Warrants to the Agents in accordance with the terms of this Agreement are each exempt from the prospectus requirements of Canadian Securities Laws;
(l) no prospectus is required nor are any other documents, proceedings or approvals, permits, consents or authorizations of regulatory authorities required to be filed, taken or obtained prior to the Closing (other than those which have been filed, taken or obtained) under Canadian Securities Laws to permit the issuance by the Corporation of the Offered Shares or the Penalty Shares; provided that, with respect to the Penalty Shares, all representations and warranties of the Subscribers contained in the Subscription Agreements will continue to be true and correct as at the date of issuance of the Penalty Shares;
(m) no prospectus is required nor are any other documents, proceedings or approvals, permits, consents or authorizations of regulatory authorities required to be filed, taken or obtained prior to the Closing (other than those which have been filed, taken or obtained) under Canadian Securities Laws to permit the issuance by the Corporation of the Agents’ Warrant Shares on the exercise of the Agents’ Warrants in accordance with their terms;
(n) the first trade in the Offered Shares, Penalty Shares, Corporate Finance Shares and the Agents’ Warrant Shares will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no prospectus, offering memorandum or other document will be required to be filed, no proceeding required to be taken and no approval, permit, consent or authorization of regulatory authorities required to be obtained by the Corporation under Applicable Securities Laws to permit such matters trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that at the time of such trade, among other requirements;
(i) the Corporation is and has been a “reporting issuer” (within the meaning of Canadian Securities Laws) in a jurisdiction of Canada for the four months immediately preceding the trade;
(ii) the trade is not a “control distribution” (as defined in NI 45-102);
(iii) no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade;
(iv) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and
(v) if the selling security holder is an insider or officer of the Corporation, the selling securityholder has no reasonable grounds to believe that the Corporation is in default of “securities legislation” (as defined in National Instrument 14-101 – Definitions and Interpretation);
(o) Odyssey Trust Company, at its principal office in Vancouver, British Columbia, has been duly appointed as registrar and transfer agent for the Class A Shares; and
(p) the form of Agents’ Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation;
(2) the Agents receiving a legal opinion from Osler, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”), in the same form as the Dealers may reasonably require relating opinion dated July 24, 2020 delivered by Osler to the distribution of Corporation;
(3) the Notes Agents receiving legal opinions from counsel to each Subsidiary (who may rely, to the extent governed by appropriate in the laws circumstances, as to matters of Albertafact on certificates of officers, Ontario or Québec.public and exchange officials related to each Subsidiary), in form and substance acceptable to the Agents and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) such Subsidiaries having been incorporated and existing under the Applicable Law of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and assets and to conduct their business as currently being conducted;
(c) at as to the Time authorized and issued share capital of Closingsuch Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and have all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective business as currently conducted;
(4) if any sales of Offered Shares are made to, or for the account or benefit of, persons in the United States or U.S. Persons, the Corporation will deliver Agents receiving an opinion of Jenner & Block LLP, addressed to the Dealers a certificate Agents, in form and substance reasonably satisfactory to the Agents and their counsel, acting reasonably, to the effect that no registration is required under the U.S. Securities Act, in connection with the offer, sale and delivery of the Offered Shares to, or for the account or benefit of, persons in the United States and U.S. Persons;
(5) the Agents receiving certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersAgents, acting reasonably, in form and substance satisfactory to the Agents, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the sale of the Offered Shares, the issuance and delivery of the Corporate Finance Shares and the Agents’ Warrants, and the authorization of the Offering Documents and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Agents having received a certificate dated the Closing Date of each Subsidiary, signed by an appropriate officer of such Subsidiary and addressed to the Agents and Agents’ counsel, in form and substance satisfactory to the Agents, acting reasonably, certifying for and on behalf of such Subsidiary and not in their personal capacity, to the actual knowledge of the person signing such certificate, after having made due and relevant inquiry, as to: (i) the corporate good standing, and (ii) the authorized capital and ownership, of such Subsidiary;
(7) the Agents receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within three Business Days prior to the Closing Date;
(8) the Agents receiving a certificate, dated as of the Closing Date, signed by two senior officers of the Corporation as may be acceptable to the Agents, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) ), to the best of their knowledge, information and belief, after due inquiry, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality qualification, in all respects) as of the Closing Time, as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects (except where already qualified by a materiality qualification, in which case the Corporation shall have complied in all respects) with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;Closing Time; and
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(ivc) since the respective dates date of the Disclosure Materials, this Agreement (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the businessBusiness, affairs, operations, assetsBusiness Assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken as B) no transaction has been entered into by the Corporation or any Subsidiary which is material to the Corporation on a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)consolidated basis;
(v9) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been correctedAgents receiving fully executed Agents’ Warrant Certificates;
(vi10) the Acquisition has not Subscription Agreements having been terminated executed, endorsed or amended in any material respectauthenticated, no material provision has been waived by the Corporation and no event has occurred or condition exists whichas applicable, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company parties thereto in form and substance satisfactory to the DealersCorporation and the Agents, acting reasonably;
(f11) evidence satisfactory the Corporation having delivered, or caused to be delivered, the Offered Shares and the Corporate Finance Shares in accordance with Section 9;
(12) the Agents receiving a certificate from Odyssey Trust Company as to the Dealers that number of Class A Shares issued and outstanding as at the Corporation’s board end of directors has authorized the Business Day on the date prior to the Closing Date;
(13) the Corporation complying with all of its covenants and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Closing Time of Closing so as to:
in all material respects (i) execute and deliver this Agreement and except where already qualified by a materiality qualification, in which case the Corporation shall have complied in all other documents contemplated under this Agreementrespects); and
(ii14) create, issue and sell the Notes in accordance with the provisions Agents not having exercised any rights of this Agreement and the Trust Indenturetermination set forth herein.
Appears in 1 contract
Conditions of Closing. 14.1 The Underwriters’ obligations of the Dealers hereunder are under this Agreement shall be subject to the satisfaction following conditions being fulfilled which are for the exclusive benefit of the following conditionsUnderwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 15.2 hereof:
(a) The Corporation shall furnish to the Underwriters (i) at the Time Closing Time, an opinion of Closing▇▇▇▇▇▇▇ Procter LLP, United States counsel for the Corporation, addressed to the Underwriters, and dated the Closing Date, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form set forth in Exhibit B hereto, (ii) at the Closing Time, an opinion of Goodmans LLP, Canadian counsel for the Corporation, addressed to the Underwriters, and dated the Closing Date, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form set forth in Exhibit C hereto, provided that Goodmans LLP in turn may rely upon the opinions of local counsel where it deems such reliance proper as to the laws other than those of the Province of Ontario and the federal laws of Canada applicable therein and (iii) at the Closing Time, an opinion of ▇▇▇▇▇▇▇, Street and Deinard Professional Association, special counsel for the Corporation will cause its counselwith respect to United States federal energy regulatory matters, addressed to the Underwriters, and dated the Closing Date, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form set forth in Exhibit D hereto;
(b) the Underwriters shall have received (i) a legal opinion, dated as of the Closing Date and addressed to the Underwriters, from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver Canadian counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect to such matters as the Dealers Underwriters may reasonably require relating request, and (ii) a letter, dated as of the Closing Date and addressed to the distribution Underwriters, from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Underwriters, with respect to the Registration Statement, the Disclosure Package and the U.S. Prospectus, in each case of (i) and (ii), in form and content to the reasonable satisfaction of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Underwriters;
(c) at the Time of Closing, the Corporation Underwriters will deliver to the Dealers a certificate have received certificates dated the Closing Date addressed to the Dealers and their counselDate, and signed by the chief executive officer and the chief financial officer of the Corporation or such other those senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to all such matters as the Underwriters may reasonably request, including the following:
(i) the constating documents of the Corporation;
(ii) the resolutions of the Directors of the Corporation relevant to the approval of the Preliminary Prospectus and Final Prospectus and the signing and filing thereof, the allotment, issue and sale of the Offered Securities and the authorization of this Agreement and the other agreements and transactions contemplated by this Agreement and each of the Material Agreements; and
(iii) the incumbency and signatures of signing officers of the Corporation;
(d) the Underwriters shall have received at the Closing Time, a certificate dated the Closing Date, addressed to the Underwriters and signed by two senior officers of the Corporation, certifying for and on behalf of the Corporation (without personal liability) Corporation, after having made due inquiry, to those matters as the Underwriters may reasonably request, including to the effect that:
(i) subsequent to the respective dates as at which information is given in the Final Prospectus or any Supplemental Material there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) to the business, operations, assets, liabilities, capital, cash flow or condition (financial or otherwise) of the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior any Project Holding Group Entity or Operated ▇▇▇ or, to the Time knowledge of Closingthe Corporation, any Minority Holding Entity or Non-Operated ▇▇▇, and none of the Corporation, any Project Holding Group Entity or Operated ▇▇▇ or, to the knowledge of the Corporation, any Minority Holding Entity or Non-Operated ▇▇▇, has entered into any transaction out of the ordinary course of business which is material to the Corporation other than as disclosed in the Preliminary Prospectus, the Final Prospectus or any Supplemental Material;
(ii) there are no actions, suits, proceedings or inquiries pending or to the representations and warranties knowledge of the Corporation contained herein are true and correct in all material respects as Corporation, threatened against or affecting the Corporation, any Project Holding Group Entity or Operated ▇▇▇ or, to the knowledge of the Time Corporation, any Minority Holding Entity or Non-Operated ▇▇▇ at law or in equity or before or by any federal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Corporation or any of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations by this Agreement and warranties which are made as of a specific date the other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyMaterial Agreements;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending trading in the Offered Securities or any other securities of the Corporation or prohibiting the sale of the Notes Offered Securities has been issued and issued, no proceedings for such purpose have been instituted or are pending orand, to the best of the knowledge of its knowledge, information and belief, no proceedings for such officers, purpose are pending or threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation has complied with all covenants and satisfied all terms and conditions of this Agreement on its Subsidiaries (taken as a whole), part to be complied with or any development involving a prospective material adverse change, financial or otherwise, in satisfied up to the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);Closing Time; and
(v) none the representations and warranties of the documents filed Corporation contained in this Agreement are true and correct as of the Closing Time with Canadian Securities Regulators forming the Corporation’s Information Record contained same force and effect as if made at and as of the Closing Time (except in respect of any representations and warranties that are made as of a misrepresentation specified date, in which case they will be true and correct only as at that date) after giving effect to the time transactions contemplated by this Agreement.
(e) TD Securities, on behalf of the relevant document was filed that has not since been correctedUnderwriters, shall have received each of the signed Lock-Up Agreements referred to in Section 11.3(jjj) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Time;
(vif) the Acquisition has Underwriters shall have received at the Closing Time a “bring-down” comfort letter or letters dated as of the Closing Date addressed to the Underwriters from KPMG LLP (New York) substantially in the form requested by the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters by KPMG LLP (New York) pursuant to Article 7, provided that such letter may be based on a review by KPMG LLP (New York) having a cut-off date not more than two business days prior to the Closing Date;
(g) the Underwriters shall have received at the Closing Time a “bring-down” comfort letter or letters dated as of the Closing Date addressed to the Underwriters from KPMG LLP (Toronto) substantially in the form requested by the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters by KPMG LLP (Toronto) pursuant to Article 7, provided that such letter may be based on a review by KPMG LLP (Toronto) having a cut-off date not more than two business days prior to the Closing Date;
(h) the Underwriters shall have received at the Closing Time “bring-down” comfort letters dated as of the Closing Date addressed to the Underwriters from PricewaterhouseCoopers LLP in form satisfactory to the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters by PricewaterhouseCoopers LLP pursuant to Article 7, provided that such letter may be based on a review by PricewaterhouseCoopers LLP having a cut-off date not more than two business days prior to the Closing Date;
(i) the Underwriters shall have received at the Closing Time a “bring-down” comfort letter or letters dated as of the Closing Date addressed to the Underwriters from KPMG LLP (Edmonton) substantially in the form requested by the Underwriters, acting reasonably, updating the comfort letter or letters to be delivered to the Underwriters by KPMG LLP (Edmonton) pursuant to Article 7, provided that such letter may be based on a review by KPMG LLP (Edmonton) having a cut-off date not more than two business days prior to the Closing Date;
(j) each of the Material Agreements shall have been terminated duly executed and delivered and the form and terms of each of the Material Agreements shall be satisfactory to the Underwriters acting reasonably, and consistent in all material respects with the Preliminary Prospectus and the Final Prospectus and none of such Material Agreements shall have been amended, supplemented or amended modified in any material respect, way and no material condition or provision has in any such Material Agreement shall have been waived by any party without the Corporation prior written consent of the Underwriters, acting reasonably, and no event has occurred each of the parties thereto shall have performed such of their obligations thereunder which are to be performed or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on completed at or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior Closing Time to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms satisfaction of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(gk) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors Directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Time of Closing Time, so as to:to validly authorize the execution and filing of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, to create and issue the Debentures and the Common Shares issuable upon conversion of the Debentures, in each case, having the attributes contemplated by the Preliminary Prospectus and the Final Prospectus;
(l) the representations and warranties of the Corporation contained herein shall be true and correct as of the Closing Time, with the same force and effect as if made at and as of the Closing Time (except in respect of representations and warranties that are made as of a specified date, in which case they will be true and correct only as at that date), after giving effect to the transactions contemplated hereby;
(m) the Corporation shall have complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at or prior to the Closing Time;
(n) the Offered Securities will have been approved for listing and posting for trading on the TSX and the Common Shares issuable upon conversion of the Debentures will have been approved for listing on the TSX, subject only to the Standard Listing Conditions, and on the NYSE, subject only to official notice of issuance;
(o) the Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request;
(p) no U.S. Prospectus or amendment or supplement to the Registration Statement or the U.S. Prospectus shall have been filed to which TD Securities shall have objected in writing;
(q) the Registration Statement and any registration statement required to be filed, prior to the sale of the Debentures, under the U.S. Securities Act pursuant to Rule 462(b) shall have been filed and shall have become effective under the U.S. Securities Act. If Rule 430A under the U.S. Securities Act is used, the U.S. Prospectus shall have been filed with the SEC pursuant to Rule 424(b) under the U.S. Securities Act at or before 5:30 p.m. (New York City time) on the second full business day after the date of this Agreement (or such earlier time as may be required under the U.S. Securities Act);
(r) prior to and at the Closing Time, (i) execute and deliver this Agreement no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the U.S. Securities Act or proceedings initiated under Section 8(d) or 8(e) of the U.S. Securities Act; (ii) the Registration Statement and all other documents contemplated amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the U.S. Preliminary Prospectuses or the U.S. Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under this Agreementwhich they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and
(iis) createFINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, issue and sell or other arrangements of the Notes transactions, contemplated hereby.
14.2 In giving the opinions contemplated in accordance with Section 14.1, counsel may rely:
(a) as to matters of fact, without independent verification (to the provisions extent appropriate in the circumstances), on certificates of public officials, representations made in this Agreement and certificates and other inquiries of officers of the Trust IndentureCorporation, in each case acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters’ counsel, acting reasonably, as to the qualification of the Offered Securities for sale to the public and as to other relevant matters in the Qualifying Jurisdictions and all other relevant jurisdictions; and
(c) in the case of counsel to the Underwriters and to the extent necessary, on the opinion of the Corporation’s counsel or local counsel.
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters to purchase the Offered Shares at the Closing Time on the Closing Date shall be subject to the satisfaction of the following conditionsfollowing:
(a) the Underwriters will receive at the Closing Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver a legal opinion addressed to the Dealers Underwriters and their counsel dated and delivered on the Closing Date from the Company’s Canadian counsel, Torys LLP, a favourable legal opinion and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to all the following matters, subject to such matters reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriters’ counsel:
(i) the Dealers may reasonably requestCompany is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Jurisdictions and it is not listed as being in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the federal laws of Canada, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the existence authorized, and corporate power issued and capacity outstanding, capital of the Corporation; Company;
(iv) the creationrights, authorizationprivileges, issue restrictions and sale of conditions attaching to the Notes; the authorization of the Trust Indenture; that the attributes of the Notes Offered Shares are consistent accurately summarized in all material respects with the description thereof in the Term SheetsProspectus;
(v) the Offered Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable Common Shares;
(vi) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and to perform its obligations under this Agreement; that and (ii) to offer, issue, sell and deliver the form of global certificate representing the Notes Offered Shares;
(vii) all necessary corporate action has been approved taken by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that Company to authorize the execution and delivery by of each of the Corporation ofPreliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof in each of the Qualifying Jurisdictions;
(viii) the Company has duly authorized, executed and delivered, this Agreement and authorized the performance by the Corporation of its obligations hereunder, including the offering, issue, sale and delivery of the Offered Shares, and this Agreement constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, being available only in the discretion of the applicable court; (iii) the applicable laws regarding limitations of actions; (iv) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under Applicable Law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; (v) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under Applicable Law; and (vi) the rights to indemnity, contribution and waiver under the documents which may be limited or unavailable under Applicable Law;
(ix) the execution and delivery of this Agreement and the Trust Indenture, including the issuance fulfillment of the Notesterms hereof, the offering, issue, sale and delivery of the Offered Shares, and the consummation of the transactions contemplated by this Agreement, do not and will not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of (A) the terms, conditions or provisions of the constating documents articles of incorporation or amalgamation, as applicable, and by-laws of the CorporationCompany, (ii) resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (Biii) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application laws of the Province of Ontario or and the federal laws of Canada applicable therein therein;
(x) Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the Common Shares;
(xi) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to preserve or protect qualify the validity or enforceability distribution of the Trust Indenture; and that the offering, issuance, sale and delivery Offered Shares in each of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and no prospectus will be requiredwho have complied with the relevant provisions of such Applicable Laws;
(xii) subject only to the Standard Listing Conditions, no other document will be required the Offered Shares have been conditionally listed or approved for listing on the TSX;
(xiii) as to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale accuracy of the Notes and statements under the payment of any fees related theretoheading “Eligibility for Investment” in the Prospectus; and
(xiv) as to all other legal matters reasonably requested by counsel to the Underwriters. It is understood that In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Shares or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (province or alternatively make arrangements provinces in which the Company’s Canadian counsel are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, circumstances but only as to matters of fact, on certificates of an officer officers of the Corporation.Company and others;
(b) at the Time Underwriters shall have received legal opinions from legal counsel to, and duly qualified to practice law in the jurisdiction of Closingexistence of, each wholly-owned Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.) addressed to the Underwriters and legal counsel to the Underwriters and based upon an officer’s certificate for each such Material Subsidiary with respect to: (i) the existence of each such Material Subsidiary; and (ii) the corporate power and capacity of each such Material Subsidiary to carry on its business and activities and to own and lease its property and assets;
(c) the Underwriters shall have received a certificate dated the Closing Date, signed by the Chief Executive Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Underwriters, in form and content satisfactory to the Underwriters’ counsel, acting reasonably, with respect to:
(i) the articles and by laws of the Company;
(ii) resolutions of the Company’s board of directors relevant to, among other things, the Dealers will issue and sale of the Offered Shares to be issued and sold by the Company and the authorization of this Agreement and the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(d) the Underwriters shall have received from their counsela certificate of status or the equivalent dated within one Business Day of the Closing Date, Torys LLPin respect of the Company and each Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.);
(e) the Company shall cause its current auditors to deliver to the Underwriters a legal opinion “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of Closing Date the Notes information contained in the comfort letter referred to the extent governed by the laws of Alberta, Ontario or Québec.in Section 25(a)(iii) hereof;
(cf) at the Time of Closing, the Corporation will Company shall deliver to the Dealers a certificate Underwriters, at the Closing Time, certificates dated the Closing Date addressed to the Dealers and their counsel, Underwriters and signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Company, or such other officers senior officer(s) of the Corporation Company as may be acceptable to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (Company and without personal liability) , to the effect that:
(i) the Corporation Company has complied in all respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation Company contained herein are true and correct in all material respects as of at the Closing Time of Closing with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus or any Supplementary Material (A) there has been no material change in the Company, (B) there has been no material and adverse change, change (financial or otherwise, ) in the business, assets (including intangible assets), affairs, operations, assetsprospects, liabilities (contingent or otherwise), capital capital, properties, condition (financial or prospects otherwise) or results of operations of the Corporation Company and its the Subsidiaries (taken as a whole), and (C) no transaction has been entered into by, and there has been no transaction that affects, the Company or any development involving a prospective Subsidiary which is material adverse change, financial or otherwise, in to the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of Company and the Corporation and its Subsidiaries (taken as a whole), from that other than as disclosed in the Corporation’s Information Record Prospectus or the Disclosure Materials (as they existed at the respective dates thereof)in any Supplementary Material;
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed with Canadian Securities Regulators forming Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Corporation’s Information Record contained Prospectus misleading or untrue in any material respect or which would result in a misrepresentation as at in the time Prospectus or which would result in the relevant document was filed that has Prospectus not since been corrected;complying with Applicable Securities Laws; and
(vi) such other matters as the Acquisition Underwriters may reasonably request;
(g) the Underwriters shall have received copies of correspondence indicating that the Company has not been terminated obtained the conditional approval of the TSX for the listing of the Offered Shares thereon, subject only to the Standard Listing Conditions;
(h) the representations and warranties of the Company contained in this Agreement will be true at and as of the Closing Time on the Closing Date as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or amended in any material respect, no material provision has been waived satisfied by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on Company at or prior to the Outside DateClosing Time on the Closing Date will have been performed, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance complied with the 2.7 Announcement on or satisfied at or prior to that time;
(i) the Outside absence of any misrepresentations in the Offering Documents or undisclosed material change or undisclosed material facts relating to the Company or the Offered Shares;
(j) the Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(k) the Underwriters shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(viil) the Acquisition has not lapsed Underwriters will have received such other certificates, opinions, agreements or been withdrawnclosing documents in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request;
(viiim) the Separation Agreement has not been terminated or amended in any material respectUnderwriters will have received evidence, no material provision has been waived by the Corporation and no event has occurred or condition exists which, satisfactory to the Corporation’s KnowledgeUnderwriters, will prevent the Separation from occurringacting reasonably, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;has waived his rights under Section 6.3 of the Securityholders Agreement in connection with the Offering; and
(en) the Supplemental Indentures shall have been executed all directors and delivered by each officers of the Corporation Company and the Trust Company their respective associates will have entered into an agreement with and an in form and substance satisfactory to the DealersUnderwriters at the Closing Time on the Closing Date pursuant to which they will agree not to, acting reasonably;
(f) evidence satisfactory for a period commencing on December 3, 2017 and ending on the date that is 90 days following the Closing Date, directly or indirectly, offer, sell, contract to sell, make any short sale, lend, swap, or otherwise dispose of, transfer, assign, or announce any intention to do so, any Common Shares or any securities convertible into or exchangeable or exercisable for Common Shares, whether now owned or hereafter acquired, directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership or enter into any transaction or arrangement that has the Dealers that the Corporation’s board effect of directors has authorized and approved this Agreement and the Trust Indenture andtransferring, in each casewhole or in part, all matters relating thereto, and have authorized and approved the issuance any of the Notes and all matters relating thereto; and
(g) all actions required economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise, other than pursuant to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute a bona fide take-over bid or any other similar transaction made generally to all of the shareholders of the Company, provided that, in the event the change of control or other similar transaction is not completed, such securities shall remain subject to the lock-up agreement, and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) createthe sale of Common Shares issued pursuant to the exercise of vested stock options or performance share units which were issued prior to December 3, issue 2017 (subject to a maximum of 100,000 Common Shares in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and sell 300,000 Common Shares in the Notes in accordance with the provisions case of this Agreement and the Trust Indenture▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇).
Appears in 1 contract
Sources: Underwriting Agreement (Village Farms International, Inc.)
Conditions of Closing. The obligations of the Dealers hereunder are Closing shall be subject to the satisfaction following conditions (it being understood that the Agents may waive in whole or in part or extend the time for compliance with any of such terms and conditions without prejudice to its rights in respect of any other of the following conditions:terms and conditions or any other or subsequent breach or non-compliance, provided that to be binding on the Agents any such waiver or extension must be in writing):
(a) at the Time Agents shall have received an opinion, dated the Closing Date and subject to customary qualifications, of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver the Corporation's legal counsel, addressed to the Dealers Agents, their legal counsel and their counsel, Torys LLP, a favourable legal opinion with respect the Purchasers as to all such legal matters as reasonably requested by the Dealers may reasonably request, including, without limiting the generality of the foregoing: Agents relating to the existence Corporation and corporate power and capacity of the Corporation; the creation, authorization, issue issuance and sale of the Notes; Shares and the authorization Compensation Options, or, instead of rendering opinions relating to the laws of the Trust Indenture; that Selling Provinces other than British Columbia, the attributes of the Notes are consistent in all material respects with the description thereof Corporation's solicitors may engage one or more legal counsel in the Term Sheets; that Selling Provinces or elsewhere to provide such local counsel opinions as may be necessary;
(b) the Agents shall have received title opinions, dated on or before the Closing Date and subject to customary qualifications, of local counsel to the Corporation, acceptable to the Agents, with respect to title to the South Mountain Project addressed to the Agents and their legal counsel, in form and content acceptable to the Agents acting reasonably;
(c) the Agents shall have received an opinion, dated the Closing Date and subject to customary qualifications, of global certificate representing Securities Law USA, PC, the Notes has been approved by Corporation’s United States securities counsel, addressed to the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the TrusteeAgents, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under availability of an exemption from the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance registration requirements of the Notes, do not and will not result in a breach of any of (A) U.S. Securities Act for the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue offer and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate Shares in the circumstancesUnited States as contemplated in this Agreement;
(d) the Agents shall have received an incumbency certificate dated the Closing Date including specimen signatures of the Chief Executive Officer, as to matters of fact, on certificates of an the Chief Financial Officer and any other officer of the Corporation.Corporation signing this Agreement or any document delivered hereunder;
(be) at the Time of Closing, the Dealers will Agents shall have received from their counsela certificate, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to of such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be are acceptable to the DealersAgents, acting reasonablyaddressed to the Agents and their counsel to the effect that, certifying for to the best of their knowledge, information and on behalf of the Corporation (belief, after due enquiry and without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein in this Agreement are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will Time and the Corporation has performed all covenants and agreements and satisfied all conditions on its part to be true and correct performed or satisfied in all material respects as of that date only;at or prior to the Closing Time; and
(iiiii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale or ceasing, suspending or restricting the trading of Common Shares in the Notes Selling Provinces has been issued or made by any stock exchange, securities commission or regulatory authority and is continuing in effect and, to the knowledge of the officers, no proceedings proceedings, investigations or enquiries for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonablypending;
(f) evidence satisfactory the Agents shall have received copies of the notice of articles and articles of the Corporation delivered at Closing certified by a senior officer of the Corporation to be full, true and correct copies, unamended, and in effect on the date thereof;
(g) the Agents shall have received copies of the minutes or other records of various proceedings and actions of the Corporation's Board of Directors relating to the Dealers Offering and delivered at Closing certified by a senior officer of the Corporation to be full, true and correct copies thereof and without having been modified or rescinded as of the date thereof;
(h) the Agents shall have received evidence of receipt of all required approvals of the TSXV in connection with the Offering;
(i) the Shares and Compensation Option Shares, shall have been accepted for listing on the TSXV, subject only to fulfilment of the standard listing conditions of the TSXV set forth in a conditional acceptance letter;
(j) the Agents and their counsel shall have been provided with information and documentation reasonably requested relating to their due diligence inquiries and investigations and the Agents shall be satisfied, in their sole discretion, with the results of their due diligence inquiries and investigations;
(k) the Agents shall have received a certificate of good standing in respect of the Corporation, dated no earlier than one Business Day before the Closing Date;
(l) the Agents shall have received certificates or lists, issued under the Securities Laws of the Reporting Provinces stating or evidencing that the Corporation’s board Corporation is not in default under the Securities Laws of directors has authorized such provinces;
(m) the Agents shall have received executed Lock-up Agreements (as defined herein);
(n) the Agents shall have received a certificate from the Transfer Agent as to the number of Common Shares issued and approved this Agreement and outstanding as at a date no more than two Business Days prior to the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretoClosing Date; and
(go) all actions required to be taken by the Agents shall have received any other certificates, comfort letters, opinions or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings industry standard documents in connection with governmental authorities, will have occurred at or prior any matter relating to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell Offering which are reasonably requested by the Notes in accordance with the provisions of this Agreement and the Trust IndentureAgents.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations of the Dealers hereunder are Underwriters under this Agreement shall be subject to the satisfaction accuracy of the representations and warranties on the part of the Corporation set forth in Section 9 hereof as of the date hereof and as of the Closing Date as though then made, to the timely performance by the Corporation of its covenants and other obligations hereunder and to the following additional conditions:
(1) the Underwriters receiving, at the Closing Time:
(a) at a favourable legal opinion, dated the Time of ClosingClosing Date, the Corporation will cause its counsel, Blake, ▇from Fraser ▇▇▇▇▇▇ & ▇Casgrain LLP, the Corporation’s counsel, in form and substance satisfactory to the Underwriters, acting reasonably, as to matters of Canadian federal and provincial law (Fraser ▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel Casgrain LLP may rely on the opinions of local counsel acceptable to them and to the Underwriters’ counsel as to matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces Province of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), Alberta and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others), addressed to the Underwriters and, if necessary for opinion purposes, the Underwriters’ counsel with respect to the matters set out in Schedule “A”;
(b) at a favourable legal opinion of regulatory counsel of the Time of Closing, the Dealers will have received Corporation from their counsel, Torys Stikeman Elliott LLP, in form and substance satisfactory to counsel for the Underwriters acting reasonably to the effect set forth in Schedule “B” 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 Corporation and its subsidiaries and certificates of public officials;
(c) a legal opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, with respect to such legal matters as the Underwriters may reasonably request;
(d) a letter dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect to such matters as the Dealers may reasonably require relating acting reasonably, addressed to the distribution Underwriters and the directors of the Notes Corporation from Ernst & Young LLP confirming the continued accuracy of the comfort letter to be delivered to the extent governed by Underwriters pursuant to Section 6(1)(b) with such changes as may be necessary to bring the laws of Albertainformation in such letter forward to a date not more than two business days prior to the Closing Date, Ontario or Québec.provided such changes are acceptable to the Underwriters, acting reasonably;
(ce) at the Time of Closinga certificate, the Corporation will deliver to the Dealers a certificate dated the Closing Date Date, addressed to the Dealers and their Underwriters and, if necessary for opinion purposes, the Underwriters’ counsel, and signed by officers of the chief executive officer Corporation acceptable to the Underwriters, acting reasonably, with respect to the constating documents of the Corporation, the fact that no acts have been taken to wind up the Corporation, all resolutions of the board of directors of the Corporation relating to this Agreement and the chief financial officer incumbency and specimen signatures of signing officers of the Corporation and such other matters as the Underwriters may reasonably request;
(f) a certificate, dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation or such other officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, certifying for and on behalf of the Corporation (without and not in their personal liability) capacity, after having made reasonable enquiries, that:
: (i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein set forth in Section 6(2) and Section 9 of this Agreement are true and correct in all material respects as (except for such representations and warranties of the Time of Closing Corporation qualified by materiality or which refer to a Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if though expressly made at on and as of the Closing Time of Closing after giving effect to the transactions contemplated herebyby this Agreement; (ii) no order, except ruling or determination having the effect of suspending the sale or ceasing or suspending trading in the Series A Shares or the Series B Shares or other securities of the Corporation has been issued and is continuing and no proceedings for representations such purpose have been instituted or, to the knowledge of such officers, are pending, contemplated or threatened; (iii) there has been no material change (actual, anticipated, contemplated or threatened) in relation to the Corporation; and warranties which are made as of a specific date other than (iv) the Closing Date, in which case they will be true and correct Corporation has complied in all material respects as of that date onlywith all the covenants and obligations hereunder and satisfied in all material respects all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iiig) receipt by the Underwritiers of a certificate from CIBC Mellon Trust Company dated the Closing Date and signed by an authorized officer of CIBC Mellon Trust Company confirming the issued capital of the Corporation;
(h) evidence that the Series A Shares and Series B Shares have been conditionally approved for listing on the TSX, subject only to the satisfaction by the Corporation of customary post-closing conditions imposed by the TSX in similar circumstances; and
(i) such other certificates and other documentation as the Underwriters may reasonably request;
(2) Articles of Amendment of the Corporation providing for the designation of the requisite number of Series A Shares and Series B Shares and providing for the rights, restrictions, conditions and limitations attaching to such shares substantially as described in the Prospectus Supplement and in a form satisfactory to the Underwriters, acting reasonably, shall have been filed under the Business Corporations Act (Alberta); and
(3) no order, ruling or determination having the effect of ceasing the trading or suspending trading in the sale Series A Shares or other securities of the Notes has Corporation shall have been issued and no proceedings for such purpose shall have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agents to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Units at the Closing Time, which conditions the Corporation covenants and agrees to use its commercially reasonable best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agents:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, shall have delivered or caused to be delivered favourable legal opinions addressed to the Agents and their legal counsel dated the Closing Date from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Corporation, as to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers Agents may reasonably request, includingacceptable to the Agents, without limiting subject to usual or customary assumptions, limitations and qualifications and to include the generality following matters:
(i) the Corporation is a “reporting issuer”, or its equivalent, in each of the foregoing: to Qualifying Provinces where Purchasers are resident and it is not on the existence list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(ii) the Corporation is a corporation existing under the laws of its jurisdiction of incorporation and has all requisite corporate power to carry on its business as now conducted and capacity to own, lease and operate its property and assets;
(iii) the authorized and issued and outstanding share capital of the Corporation;
(iv) the Corporation has all necessary corporate capacity, power and authority: (A) to execute and deliver this Agreement, the Warrant Indenture, the Warrant Certificates and the Compensation Option Certificates and to perform its obligations hereunder and thereunder; the creation, authorization(B) to create, issue and sale sell the Unit Shares and the Warrants (including, for greater certainty, any Unit Shares or Warrants issuable upon exercise of the NotesCompensation Options); and (C) to issue the authorization Warrant Shares issuable upon exercise of the Trust Indenture; that the attributes of the Notes are consistent Warrants in accordance with their terms;
(v) all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes necessary corporate action has been approved taken by the Corporation to authorize the execution and complies delivery of each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators;
(vi) upon the payment therefor, the Unit Shares forming part of the Offered Units will have been validly issued as fully paid and non-assessable Common Shares;
(vii) the Warrants (including, for greater certainty, any Warrants issuable upon exercise of the Compensation Options) have been validly created;
(viii) the Warrant Shares issuable upon the exercise of the Warrants (including, for greater certainty, any Warrants issuable upon exercise of the Compensation Options) have been authorized and allotted for issuance and, upon the exercise of the Warrants in accordance with the provisions thereof, such Warrant Shares will be validly issued as fully paid and non-assessable Common Shares;
(ix) the Compensation Options have been validly created;
(x) the Unit Shares issuable upon the exercise of the Trust Indenture; that Compensation Options have been authorized and allotted for issuance and, upon the Corporation has appointed exercise of the Trustee Compensation Options in accordance with the provisions thereof, such Unit Shares will be validly issued as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, fully paid and non-assessable Common Shares;
(xi) all necessary corporate action has been duly appointed taken by the Corporation as to authorize the paying agent in respect of the Notes under the Trust Indenture; the enforceability execution and delivery of this Agreement, the Trust Indenture Warrant Indenture, the Warrant Certificates and the Notes; Compensation Option Certificates and the performance of its obligations hereunder and thereunder and this Agreement, the Warrant Indenture, the Warrant Certificates and the Compensation Option Certificates have been executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution may be limited by applicable law;
(xii) the rights, privileges, restrictions and conditions attaching to the Unit Shares and the Warrants (including, for greater certainty, any Unit Shares or Warrants issuable pursuant to the Compensation Options) are accurately summarized in all material respects in the Final Prospectus;
(xiii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Provinces have been obtained by the Corporation to qualify the distribution to the public of the Offered Units and the grant, issuance and delivery of the Compensation Options to the Agent in each of the Qualifying Provinces through persons who are registered under applicable Securities Laws and who have complied with the relevant provisions of applicable Securities Laws;
(xiv) the issue by the Corporation of the Warrant Shares to be issued upon exercise of the Warrants and the Unit Shares and Warrants comprising Compensation Units to be issued upon exercise of the Compensation Options are exempt from, or are not subject to, the prospectus and registration requirements of the Securities Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained by the Corporation under the Securities Laws of the Qualifying Provinces in respect of such distribution;
(xv) the first trade in, or resale of, the Warrant Shares to be issued upon exercise of the Warrants (including, for greater certainty, any Warrants issued upon the exercise of the Compensation Units) and the Unit Shares issuable upon exercise of the Compensation Options is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under such Securities Laws in respect of such trade;
(xvi) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares (including, for greater certainty, any Unit Shares or Warrant Shares issuable upon exercise of the Compensation Units) have been conditionally approved for listing on the TSX;
(xvii) the execution and delivery of this Agreement, the Warrant Indenture, the Warrant Certificates and the Compensation Option Certificates, the fulfilment of the terms hereof and thereof by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes Offered Units to be issued and sold by the Corporation at the Closing Time and the issuance of the Compensation Options, the Compensation Units and the Warrant Shares, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of, and do not and will not conflict with: (A) the provisions of any law, statute, rule or regulation to purchasers which the Corporation is subject; or (B) the constating documents of the Corporation;
(xviii) the Transfer Agent has been duly appointed as the transfer agent and registrar for the Common Shares; and
(xix) subject to the assumptions, qualifications, limitations and restrictions set out therein, the statements under the heading in the Offering JurisdictionsProspectus “Eligibility for Investment” are accurate in all material respects. In connection with such opinions, in accordance with counsel to the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to them counsel to the Agents, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Units and the Compensation Options or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements province in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practise and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) at if any Offered Units are sold by the Time Agents, a Selling Firm or any affiliate of Closingthe Agents or a Selling Firm to, or for the account or benefit of, persons in the United States or U.S. Persons, the Dealers Corporation shall cause a favourable legal opinion to be delivered by its United States counsel, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, to the Agents, such opinion to be subject to such qualifications and assumptions as the Agents may agree, acting reasonably, to the effect that no registration of the Offered Units will be required under the U.S. Securities Act in connection with the offering of the Offered Units for sale to, or for the account or benefit of, persons in the United States or U.S. Persons;
(c) the Agents shall have received from their counsel, Torys LLP, a favourable legal opinion addressed to the Agents and the Agents’ counsel as to the title to the Priority Nevada Properties, dated as of the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers Agent and their counsel, acting reasonably;
(d) the Corporation will have caused a favourable legal opinion to be delivered by local counsel in the jurisdiction of incorporation of each Subsidiary addressed to the Agents, in form and substance satisfactory to the Agents, acting reasonably, and with respect to the following matters:
(i) the incorporation and existence of the Subsidiary under the laws of its jurisdiction of incorporation;
(ii) as to the authorized share capital of the Subsidiary, as to the issued and outstanding share capital of the Subsidiary and all of the issued and outstanding shares of the Subsidiary are registered, directly or indirectly, in the name of the Corporation; and
(iii) that the Subsidiary has all requisite corporate capacity power and authority under the laws of its jurisdiction of incorporation to carry on its business as presently carried on and to own lease and operate its properties and assets;
(e) the Corporation shall cause the Corporation’s Auditors to deliver to the Agents a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 5(a)(iv) hereof;
(f) the Agents shall have received a certificate, dated as of the Closing Date, signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other officers officer(s) of the Corporation as the Agents may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (and without personal liability, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Units to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(g) the Agents shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agents may agree, certifying for and on behalf of the Corporation and without personal liability, to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or any of the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(ii) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws;
(iii) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(iiiv) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of at the Time of Closing Time, with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;; and
(iiiv) receipts or decision documents have been issued by the Canadian Securities Regulators for the Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws or by any regulatory authority;
(ivh) since the respective dates Agents shall have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the Unit Shares, the Warrants and the Warrant Shares (including, for greater certainty, any Unit Shares or Warrant Shares issuable upon exercise of the Disclosure MaterialsCompensation Units) to be conditionally listed on the TSX, there has been no material adverse change, financial or otherwise, in subject only to the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)Standard Listing Conditions;
(vi) none the Agents shall have received a certificate from the Transfer Agent as to the number of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation Common Shares issued and outstanding as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date immediately prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(viij) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or Agents shall have publicly announced that it has under surveillance received a certificate of status or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true equivalent in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors respect of the Corporation and each Subsidiary issued by the appropriate regulatory authority in each jurisdiction in which the Corporation and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:such Subsidiary are incorporated;
(ik) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Agents shall have received a copy of the Reporting Issuer List or the Defaulting Issuer List, as the case may be, for each of the Qualifying Provinces which such lists are available confirming that the Corporation is a reporting issuer not in default of applicable Securities Laws; and
(iil) createthe Agents shall have completed and be satisfied, issue and sell the Notes in accordance their sole discretion, with the provisions results of this Agreement their due diligence investigations regarding the Corporation, its business, operations and financial condition and market conditions at the Trust IndentureClosing Time.
Appears in 1 contract
Conditions of Closing. 14.1 The Underwriters’ obligations of the Dealers hereunder are under this Agreement shall be subject to the satisfaction following conditions being fulfilled which are for the exclusive benefit of the following conditionsUnderwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 15.2 hereof:
(a) The Corporation shall furnish to the Underwriters (i) at the Time Closing Time, an opinion and letter of Closing▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special United States counsel for the Corporation, addressed to the Underwriters, and dated the Closing Date, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form of the respective opinion and letter set forth in Exhibit B hereto, (ii) at the Closing Time, an opinion of Goodmans LLP, Canadian counsel for the Corporation, addressed to the Underwriters, and dated the Closing Date, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form set forth in Exhibit C hereto, provided that Goodmans LLP in turn may rely upon the opinions of local counsel where it deems such reliance proper as to the laws other than those of the Province of Ontario and the federal laws of Canada applicable therein and (iii) at the Closing Time, an opinion of ▇▇▇▇▇▇▇, Street and Deinard Professional Association, special counsel for the Corporation will cause its counselwith respect to United States federal energy regulatory matters, addressed to the Underwriters, and dated the Closing Date, with executed or reproduced copies for each Underwriter, and in form and substance reasonably satisfactory to the Underwriters, in substantially the form set forth in Exhibit D hereto;
(b) the Underwriters shall have received (i) a legal opinion, dated as of the Closing Date and addressed to the Underwriters, from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver Canadian counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel Underwriters may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Conditions of Closing. The obligations of the Dealers hereunder are Trust to sell the Notes to purchasers, and for the purchasers to purchase the Notes from the Trust, will be subject to the satisfaction of the following conditions, which conditions may be waived in writing in whole or in part by the party entitled to the benefit thereto:
(a) at the Time of ClosingTrust and the Agents shall have complied fully with all Applicable Securities Laws, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver prior to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect Closing Time;
(b) all conditions precedent to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with shall have been satisfied;
(c) the provisions of Agents shall have received a legal opinion from the CBCA; Trust’s counsel, in form and content satisfactory to the reporting issuer status of Agents and their counsel, acting reasonably, addressed to the Corporation under applicable Canadian Securities Laws; that no authorizationAgents, consent or approval of, or registration, filing or recording as to (i) the establishment and existence of the Trust Indenture withand the Seller; (ii) the due authorization, any governmental or execution and delivery, and the enforceability of this Agency Agreement; (iii) the enforceability of the Notes against the Trust; (iv) that all necessary documents have been filed, all requisite proceedings have been taken and all necessary approvals, permits, consents and authorizations of the appropriate regulatory authority have been obtained by the Trust under any the applicable statute or regulation of general application securities laws of the Province of Ontario to qualify the Notes for distribution to the public in the Province of Ontario through registrants or of Canada applicable therein is necessary in order to preserve or protect dealers registered under the validity or enforceability securities laws of the Trust Indenture; and that the offering, issuance, sale and delivery Province of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance Ontario who have complied with the terms and conditions relevant provisions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes applicable legislation and the payment terms of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers)their registrations, and may rely, to the extent appropriate in the circumstances, as to (v) true sale matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Purchase Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for Trust and the Agents shall have received from the Rating Agencies on or prior to the Closing Date confirmation in writing that the Notes shall be at least will receive a rating of “Baa1Aaa” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsa rating of “AAA” from DBRS;
(e) the Supplemental Indentures Agents shall have been executed and delivered by each received a copy of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonablyAgreed Upon Procedures letter;
(f) evidence satisfactory the Agents shall have received such certificates, opinions and other documents as may reasonably be requested by the Agents and their counsel;
(g) the closing for the issuance and sale of the Series 2010-1 Class A-1a Asset Backed Notes of the Trust (the “Class A-1a Notes”), the Series 2010-1 Class A-1b Asset Backed Notes of the Trust (the “Class A-1b Notes”), the Series 2010 Class A-2b Asset Backed Notes of the Trust (the “Class A-2b Notes”) and the Class B Asset Backed Notes of the Trust (the “Class B Notes”) shall occur contemporaneously with the Closing;
(h) the Originator has satisfied the conditions of the amended and restated commitment letter dated September 30, 2009 between the Business Development Bank of Canada (“BDC”) and the Originator or there has been a waiver thereof, or as otherwise agreed with BDC (provided that ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc. shall so confirm prior to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretoClosing Date); and
(gi) all actions required ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc. and Banc of America Securities LLC shall have received irrevocable commitments (in the agreed form of subscription agreements) to be taken by or on behalf purchase the aggregate principal amount of the Corporation and its SubsidiariesClass A-1a Notes, as applicablethe Class A-1b Notes, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Class A-2b Notes in accordance with the provisions of this Agreement and the Trust IndentureClass B Notes being offered by the Trust.
Appears in 1 contract
Sources: Agency Agreement (PHH Corp)
Conditions of Closing. The 9.1 Subject to subsection 9.2 and Section 10, the Agents’ obligations hereunder will be subject to and conditional upon receipt by the Agents at closing of the Dealers hereunder are subject to the satisfaction purchase of the following conditionsNotes and dated as of the Closing Date, of the following:
(a) final rating confirmations, which may be in letter format or by the issuance of a press release, confirming a rating for the Notes of at least (i) “Baa1 (positive outlook)” from ▇▇▇▇▇’▇ Investors Service, Inc., (ii) “A- (stable)” from Standard and Poor’s Ratings Services, and (iii) “A low (stable)” from DBRS Inc. and each such rating will not have been withdrawn or downgraded nor will any such action be anticipated, pending or have been threatened;
(b) a certificate of the Time Company, signed by an executive officer of Closingthe Company, acceptable to the Agents, acting reasonably, addressed to the Agents certifying to the knowledge of such executive officer, without personal liability but after due enquiry, substantially as set out in Schedule A;
(c) certified copies of resolutions, or appropriate delegation of authority documentation, of the Company authorizing this Agreement, the Corporation will cause its counselMaterial Contracts and the Offering;
(d) a legal opinion of Osler, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Harcourt LLP, to deliver counsel to the Dealers Company, addressed to the Agents and their counselcounsel dated the Closing Date, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: in form and substance acceptable to the existence Agents, acting reasonably, that subject to customary qualifications and assumptions:
(i) the Company is a corporation incorporated and validly existing, under the Business Corporations Act (Ontario) and has the corporate power and capacity to execute, deliver and perform its obligations under the Material Contracts;
(ii) all necessary corporate action has been taken by the Company to authorize the execution and delivery by it of the Corporation; Material Contracts and the creationperformance of its obligations hereunder and thereunder, authorization, issue and sale each of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, Material Contracts has been duly appointed executed and delivered by the Corporation as the paying agent in respect Company, and constitutes a legal, valid and binding obligation of the Notes Company, enforceable against the Company in accordance with its respective terms, subject to applicable bankruptcy, insolvency, and other laws affecting the enforcement of creditors rights generally; and subject to the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and except that rights to indemnity, contribution and waiver may be limited under the Trust Indenture; applicable laws and other customary qualifications;
(iii) the enforceability execution and delivery of this Agreement, the Trust Indenture Material Contracts and the Notes; that fulfilment of the respective terms hereof and thereof by the Company do not result in a breach of or constitute a default under the articles or by-laws of the Company or contravene any law or regulation of the Province of Ontario or the laws of Canada applicable therein binding on or applicable to the Company;
(iv) no authorization, consent, permit or approval of, or other action by, or filing with or notice to, any governmental agency or authority, regulatory body, court, tribunal or other similar entity is required in connection with the execution and delivery by the Corporation of, and Company of the Material Contracts or the performance by the Corporation Company of its the Company’s obligations under this Agreement thereunder other than the delivery of the Offering Memorandum and the Trust Indenturefiling of reports required under Part 6 of NI 45-106 with the applicable securities regulator or securities regulatory authority, including together with the applicable fees, within the prescribed time periods;
(v) the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance sale of the Notes by the Company, through the Agents, to purchasers of the Notes in the manner contemplated by this Agreement is exempt from the prospectus requirements of applicable securities laws of each of the provinces or territories of Canada where Notes are sold (the “Applicable Jurisdictions”) and no prospectus or other document must be filed, proceedings taken or approval, permit, consent, or authorization obtained by the Company under such applicable securities laws to permit such issuance and sale through persons registered under such securities laws in categories permitting them to distribute the Trust Indenture complies Notes who have complied with such securities laws and the terms and conditions of their registration, subject to the delivery of the Offering Memorandum and the filing by the Company, with respect to each purchaser of Notes, of duly completed reports pursuant to Part 6 of NI 45-106 with the provisions of applicable securities regulator or securities regulatory authority, together with the CBCA; applicable fees, within the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that prescribed time periods;
(vi) no authorization, consent or approval of, or registration, filing or recording of of, or with respect to, the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; Indenture or the Notes issued under the Trust Indenture in any of the Applicable Jurisdictions;
(vii) the creation and that the offering, issuance, sale and delivery issuance of the Notes have been duly authorized by all necessary corporate action on the part of the Company and the Global Notes have been duly executed and delivered by the Corporation Company to the Indenture Trustee;
(viii) the Global Notes in the form required by the Trust Indenture and when duly and validly authenticated by the Indenture Trustee in the manner contemplated in the Trust Indenture and delivered to and paid for by the purchasers of the Notes, the Notes represented by the Global Notes shall be validly issued and entitled to the benefits provided in the Trust Indenture;
(ix) the attributes of the Notes are consistent in all material respects with the description of the Notes in the Offering Jurisdictions, in accordance with Memorandum; and
(x) the terms and conditions of this Agreement, is, or will be exempt from Indenture Trustee has been duly appointed as the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained trustee under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is Trust Indenture; it being understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of OntarioOsler, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and ▇▇▇▇▇▇ & Harcourt LLP may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers, directors or other representatives of the Corporation.Company, and on the opinions of local counsel acceptable to the Agents, acting reasonably (signed copies of which must be addressed to and delivered to the Agents and Agents’ legal counsel) with respect to matters governed by laws other than those of the Provinces of Quebec, Ontario and Alberta;
(be) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Agents, addressed to the Agents dated the Closing Date, in form and substance satisfactory acceptable to the DealersAgents, acting reasonably, with respect to such matters as the Dealers Agents may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.require;
(cf) at the Time of Closing, the Corporation will deliver to the Dealers a certificate bring-down comfort letter from Ernst & Young LLP dated the Closing Date addressed to the Dealers in form and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be substance acceptable to the DealersAgents, acting reasonably, certifying for with respect to certain financial information contained in the Offering Memorandum;
(g) a bring-down comfort letter from Deloitte LLP dated the Closing Date in form and substance acceptable to the Agents, acting reasonably, with respect to certain financial information contained in the Offering Memorandum;
(h) signed copies of the Material Contracts in a form satisfactory to the Agents, acting reasonably;
(i) a Global Note (or Global Notes) representing the Notes against payment by Scotia on behalf of the Corporation (without personal liability) that:Agents of the aggregate subscription price for the Notes, each registered in the name of CDS, or its nominee, or as the Agents may otherwise direct the Company in writing not less than 24 hours prior to the closing of the issuance of the Notes;
(ij) evidence that the Corporation Company has complied with met all requirements of CDS necessary to make use of the covenants book-entry system (including obtaining a CUSIP number for the Notes and satisfied completing all applicable forms;
(k) evidence that the terms Company and conditions of this Agreement the Indenture Trustee have executed and delivered the Trust Indenture on its part and all certificates, opinions and other documents required under the Trust Indenture to be complied with executed and satisfied delivered at or prior to the Time of Closing;
(ii) the representations and warranties closing of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale purchase of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each the appropriate parties and no Event of the Corporation and Default (as defined in the Trust Company in form Indenture), or event which, with notice or the lapse of time or both, would constitute an Event of Default, will have occurred and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretobe continuing; and
(gl) all actions required any other item in relation to the placement of the Notes as the Agents may request, acting reasonably.
9.2 The Agents may waive receipt of or agree to changes to any of the items in subsection 9.1 in their sole discretion provided that, to be taken binding on the Agents any such waiver or changes must be in writing and signed by or on behalf all of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust IndentureAgents.
Appears in 1 contract
Conditions of Closing. The obligations Subscriber acknowledges and agrees that the Corporation is relying on the truth of the Dealers hereunder are subject to representations and warranties of the satisfaction Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, and the fulfillment of the following conditionsadditional conditions prior to the Closing Time:
(a) on or about June 30, 2021,
(i) the Subscriber having delivered a properly completed and signed Subscription Agreement (including all applicable Schedules hereto) to the Corporation at the Time of Closingaddress below, and having made payment arrangements for the Corporation will cause its counsel, Blake, Subscription Amount in a manner acceptable to the Corporation: Dakota Territory Resource Corp. E-mail: d▇▇▇▇▇▇▇ & ▇▇@▇▇▇▇-▇▇▇ LLP.▇▇▇
(ii) if the Subscriber is resident of Canada or otherwise subject to Canadian Securities Laws, the Subscriber having properly completed, signed and delivered (A) Schedule “B” (the Canadian Accredited Investor Status Certificate) attached hereto, and (B) Exhibit “I” to deliver Schedule “B” if subscribing under categories (j), (k) or (l) of the Canadian Accredited Investor Status Certificate;
(iii) if the Subscriber is resident outside of Canada and the United States, the Subscriber having properly completed, signed and delivered Schedule “C” (the International Jurisdiction Certificate) attached hereto; and
(iv) if the Subscriber is a U.S. Subscriber, the Subscriber having property completed, signed and delivered Schedule “D” (the U.S. Accredited Investor Certificate) attached hereto;
(b) the Subscriber having executed and returned to the Dealers and their counselCorporation, Torys LLP, a favourable legal opinion with respect to all such matters as at the Dealers may reasonably Corporation’s request, including, without limiting all other documents as may be required by the generality Securities Laws for delivery by the Corporation on behalf of the foregoing: to Subscriber;
(c) the existence Corporation having obtained all necessary approvals and corporate power and capacity consents in respect of the CorporationOffering; and
(d) the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be Common Stock being exempt from the requirement to file a prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable requirement to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (deliver an offering memorandum or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require similar disclosure document under applicable securities legislation relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted Common Stock, or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken having received such orders, consents or approvals as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not may be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by permit such sale without the requirement to file a prospectus or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at registration statement or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenturean offering memorandum.
Appears in 1 contract
Sources: Subscription Agreement (Dakota Territory Resource Corp)
Conditions of Closing. (1) The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Initial Units and the Over-Allotment Securities, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a) at the Time of ClosingUnderwriters receiving favourable legal opinions from Stikeman Elliott LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(i) the Corporation is a corporation validly continued and existing under the Canada Business Corporations Act and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(ii) the Corporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement and the Warrant Indenture, as applicable, (ii) to create, issue and sell the Offered Securities, and (iii) to grant the Over-Allotment Option;
(iii) the authorized and issued capital of the Corporation;
(iv) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the Warrant Indenture, as applicable, and the performance of its obligations under the Agreement and the Warrant Indenture, and this Agreement and the Warrant Indenture have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement and the Warrant Indenture may be limited by Applicable Law;
(v) the execution and delivery of this Agreement and the Warrant Indenture and the fulfilment of the terms of this Agreement and the Warrant Indenture by the Corporation and the issuance, sale and delivery of the Offered Securities, the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation that were approved since an agreed upon date, or any applicable corporate law or Securities Laws;
(vi) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Offering Documents (and any Prospectus Amendment) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(vii) the Unit Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(viii) the Unit Warrants have been validly created and issued as warrants of the Corporation;
(ix) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares and Over- Allotment Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Corporation and, upon the exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares and Over-Allotment Warrants will be duly and validly created, authorized, issued and outstanding and the Over-Allotment Shares will be fully paid and non-assessable shares;
(x) the Warrant Shares and Over-Allotment Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants and Over-Allotment Warrants, as applicable, in accordance with their respective terms, the Warrant Shares and Over- Allotment Warrant Shares will be validly issued as fully paid and non- assessable shares in the capital of the Corporation;
(xi) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Securities in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(xii) the issuance of the Warrant Shares and Over-Allotment Warrant Shares issuable upon exercise of the Warrants and Over-Allotment Warrants are exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(xiii) subject to the qualifications and assumptions set out therein, the statements set forth in the Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(xiv) subject only to the standard listing conditions, the Unit Shares, the Over- Allotment Shares, the Warrant Shares, the Over-Allotment Warrant Shares have been conditionally listed or approved for listing on the TSX;
(xv) Computershare Trust Company of Canada has been duly appointed as registrar and transfer agent of the Common Shares and as warrant agent under the Warrant Indenture;
(xvi) the attributes of the Offered Securities conform in all material respects with the description thereof contained in the Final Prospectus; and
(xvii) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, acting reasonably.
(b) if any of the Offered Securities are offered or sold in the United States or to, or for the account or benefit of, U.S. Persons, the Underwriters shall have received at the Closing Time of Closing, the Dealers will have received from their counsel, Torys LLP, a customary and favourable legal opinion dated the Closing Date, Date in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer and resale of the Notes Offered Securities under Rule 144A to Qualified Institutional Buyers, provided, that such offer, resale and delivery of Offered Securities in the extent governed by United States or to, or for the laws account or benefit of, U.S. Persons, is made in compliance with this Agreement and the terms set out in Schedule “B” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of Alberta, Ontario or Québec.any Offered Securities;
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(i) the constating documents of the Corporation;
(ii) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option and the authorization of this Agreement and the Warrant Indenture and the transactions contemplated herein and therein; and
(iii) the incumbency and signatures of signing officers for the Corporation;
(d) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(e) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Former Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(f) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Corporation’s Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(g) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(i) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(ii) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyTime;
(iii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority; and
(iv) since the respective dates Prospectus Supplement is true and correct in all material respects and contains no misrepresentation, constitute full, true and plain disclosure of all material facts relating to the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of Offered Securities and to the Corporation and its Subsidiaries (taken considered as a whole), whole and do not contain an untrue statement of a material fact or any development involving omit to state a prospective material adverse change, financial or otherwisefact necessary to make the statements therein, in light of the business affairscircumstances in which they were made, operationsnot misleading;
(h) the Underwriters receiving the executed lock-up agreements, assetsin favour of the Underwriters, liabilities (contingent or otherwise) or capital from each director and officer of the Corporation and its Subsidiaries (taken in a form satisfactory to the Underwriters as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)required pursuant to Section 9(1)(c) of this Agreement;
(vi) none the Underwriters receiving a certificate from Computershare Trust Company of Canada as to the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation number of Common Shares issued and outstanding as at the time end of Business Day on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(viij) no order, ruling or determination having the Acquisition has not lapsed effect of ceasing or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended suspending trading in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating prohibiting the sale of the Notes; and
(x) as Offered Securities or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to such other matters the knowledge of a factual nature as the Dealers and Corporation, threatened by any securities regulatory authority or the Dealers’ counsel may reasonably request; and such statements shall be true in factTSX;
(dk) the credit rating issued Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Unit Shares, Warrant Shares, Over-Allotment Shares and Over-Allotment Warrant Shares on the TSX, subject only to satisfaction by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsof standard listing conditions;
(el) the Supplemental Indentures shall have been executed Corporation complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(im) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(iin) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The obligations of Underwriter’s obligation to purchase the Dealers hereunder are Offered Shares pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a1) the Underwriter receiving at the Closing Time of Closing, the Corporation will cause its counsel, favourable legal opinions from Blake, ▇C▇▇▇▇▇▇ & ▇G▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriter as to the qualification of the Offered Shares for sale to the public, certain corporate matters and as to other matters governed by the laws of jurisdictions in Canada other than Canada the provinces and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements territories in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below:
(a) the Corporation is a corporation incorporated under the Business Corporations Act (British Columbia) and is a valid and existing company and is, with respect to filing annual reports, in good standing and has all requisite corporate power and capacity to own and lease its properties and assets as described in the Offering Documents;
(b) the Corporation has all necessary corporate power and capacity to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms hereof by the Corporation and the issuance, sale and delivery of the Offered Shares, do not and will not result in a breach or violation of the notice of articles or articles of the Corporation or will not result in any violation of any law of the Province of British Columbia or the federal laws of Canada applicable therein;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the issuance, distribution and sale of the Offered Shares in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration;
(i) subject to the qualifications set out in the Prospectus under the heading “Eligibility for Investment”, the Offered Shares will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax free savings accounts;
(j) subject only to the customary listing conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(k) to such other matters as may reasonably be requested by the Underwriter; in a form acceptable to counsel to the Underwriter, acting reasonably.
(1) the Underwriter receiving, at the Time of ClosingClosing Time, the Dealers will have received from their counsel, Torys LLP, a favourable legal opinion dated the Closing DateDate from D▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, United States counsel for the Corporation, to the effect that the offer and sale of Offered Shares in the United States in accordance with the U.S. Memoranda and this Agreement (including Schedule “C” hereto) will not be required to be registered under the U.S. Securities Act, in form and substance satisfactory to the DealersUnderwriter and its counsel, with respect to such matters as acting reasonably;
(2) the Dealers may reasonably require relating Underwriter receiving at the Closing Time title opinions from legal counsel acceptable to the distribution Underwriter, regarding the right to or ownership of the Notes Gibellini Project in a form acceptable to the extent governed by Underwriter and its counsel, acting reasonably;
(3) the laws Underwriter receiving at the Closing Time favourable legal opinions from legal counsel to the Corporation acceptable to the Underwriter, regarding the Material Subsidiaries in a form acceptable to the Underwriter and its counsel, acting reasonably, to the effect set out below:
(a) the Material Subsidiary having been incorporated and existing under its jurisdiction of Alberta, Ontario or Québec.incorporation;
(b) the Material Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Offering Documents; and
(c) at the Time of Closing, the Corporation will deliver as to the Dealers a certificate authorized and issued share capital of the Material Subsidiary and to the ownership thereof;
(1) the Underwriter having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriter, acting reasonably, in form and content satisfactory to the Underwriter, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, and the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(1) the Underwriter receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Material Subsidiaries, each dated within one (1) Business Day prior to the Closing Date, or as close to the Closing Date as practicable in the relevant jurisdictions;
(2) the Underwriter receiving, at the Closing Time, a “bring down” auditors comfort letter dated the Closing Date from the auditors of the Corporation, Davidson & Company, LLP, in form and substance satisfactory to the Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(2)(c) hereof;
(3) the Underwriter receiving from the Corporation at the Closing Time, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriter, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiia) no order, ruling or determination having the effect of suspending the distribution or ceasing the trading or suspending prohibiting the sale distribution of the Notes Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority
(ivb) since the respective dates of the Disclosure Materials, there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries on a consolidated basis, or new material fact, or change in any material fact (taken as a whole), from that disclosed which includes the disclosure of any previously undisclosed material fact) contained in the Corporation’s Information Record Final Prospectus, which fact or change is, or may be, of such a nature as to render any statement in the Disclosure Materials (as they existed at Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the respective dates thereof)Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws or which would require an amendment to the Final Prospectus;
(vc) none the representations and warranties of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record Corporation contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in this Agreement, and in any material respect, no material provision has been waived by certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and correct in all material respects as contemplated in of the 2.7 AnnouncementClosing Time as if such representations and warranties were made as at the Closing Time, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior after giving effect to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as transactions contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Noteshereby; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for Corporation has complied in all material respects with all the Notes shall be at least “Baa1” (stable), covenants and satisfied in all material respects all the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” terms and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each conditions of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required on its part to be taken by or on behalf of the Corporation complied with and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time.
(i1) execute the Corporation's directors and deliver officers shall each have entered into lock-up agreements, substantially in the form attached hereto as Schedule “D”;
(2) the Underwriter having received, at the Closing Time, a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the end of Business Day on the date prior to the Closing Date;
(3) at the Closing Time, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the distribution of the Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to the knowledge of the Corporation, threatened by any securities regulatory authority or the TSX;
(4) the Corporation having delivered to the Underwriter evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX, subject only to satisfaction by the Corporation of customary listing conditions;
(5) the Corporation complying with all of its covenants and obligations under this Agreement and all other documents contemplated under required to be satisfied at or prior to the Closing Time;
(6) the Commission having been paid in accordance with Section 14 of this Agreement;
(7) the Underwriter not having exercised any rights of termination set forth herein; and
(ii) create8) the Underwriter having received at the Closing Time such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with the provisions of this Agreement and the Trust IndentureCorporation contemplated herein.
Appears in 1 contract
Sources: Underwriting Agreement (Prophecy Development Corp.)
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Initial Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction following conditions having been met at the Closing Time:
(1) the Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, on the opinions of local counsel acceptable to counsel to the Underwriters as to the qualification of the following conditionsOffered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly continued and existing under the OBCA and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) the authorized and issued Common Shares of the Corporation;
(c) the Corporation has the requisite corporate power and authority to enter into this Agreement and to perform its obligations set out herein, and the Agreement has been duly executed and delivered by the Corporation and constitute a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with their terms;
(d) the execution and delivery of this Agreement and the fulfilment of the terms of this Agreement by the Corporation and the issuance, sale and delivery of the Offered Securities, the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles and articles of the Corporation, or any applicable Canadian Securities Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution of each of the Offering Documents (and any Prospectus Amendment) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(f) the Initial Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(g) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares been duly and validly, allotted and reserved for issuance by the Corporation and, upon the due exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares will issued and outstanding as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Securities in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(i) subject to the qualifications, limitations and assumptions set out therein, the statements set forth in the Prospectus under the captions “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(j) subject only to the standard listing conditions, the Initial Shares and the Over-Allotment Shares have been conditionally listed or approved for listing on the TSX and NYSE;
(k) TSX Trust Company has been duly appointed as registrar and transfer agent of the Common Shares; and
(l) the attributes of the Initial Shares and the Over-Allotment Shares conform in all material respects with the description thereof contained in the Prospectus; in form and substance acceptable to the Underwriters and their counsel, acting reasonably.
(2) the Underwriters receiving a favourable legal opinion in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to be delivered to the Underwriters with respect to:
(a) such Subsidiaries having been incorporated and existing under the Applicable Law of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and assets and to conduct their business as currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and have all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective business as currently conducted;
(3) the Underwriters receiving a favourable legal opinion in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to be delivered to the Underwriters with respect to the Guayabales Project;
(4) if any of the Initial Shares or Over-Allotment Shares are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion, dated the Closing Date, of Closing▇▇▇▇▇▇▇▇, the Corporation will cause its counsel▇▇▇▇, Blake, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver special United States counsel for the Corporation, addressed to the Dealers Underwriters and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may in form and substance reasonably request, including, without limiting the generality of the foregoing: satisfactory to the existence and corporate power and capacity of Underwriters, to the Corporation; effect that no registration is required under the creation, authorization, issue U.S. Securities Act in connection with the offer and sale of the NotesInitial Shares and Over-Allotment Shares in the United States; the authorization provided, that such offer, resale and delivery of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof Initial Shares and Over-Allotment Shares in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies United States is made in compliance with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not terms set out in Schedule “A” hereto and will not result in a breach provided further that it being understood that no opinion is expressed as to any subsequent resale of any of the Initial Shares or Over-Allotment Shares and provided further that in rendering such opinions, such counsel may rely: (Ai) as to matters involving the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, laws other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale laws of the Notes United States and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may relyin which they are admitted, to the extent appropriate such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions of other counsel familiar with the circumstances, applicable laws; and (ii) as to matters of fact, to the extent such counsel deems proper, on (a) certificates or other written statements of an officer officers of the Corporation.
Corporation and (b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory Underwriters’ Certificate attached hereto as Appendix I to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Schedule “A;
(c5) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option and the authorization of this Agreement and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(7) the Underwriters receiving an auditor’s “bring down” comfort letter dated the Closing Date from the Corporation’s Auditor and the Corporation’s Prior Auditor, in form and substance satisfactory to the Lead Underwriter, on behalf of the Underwriters, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(8) the Corporation will cause its officers and directors to execute and deliver to the Underwriters signed lock-up agreements, in form and content acceptable to the Underwriters, acting reasonably, on or before the Closing Time, pursuant to which each such person agrees, for a period beginning on the Closing Date and ending 90 days after the Closing Date, not to, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, or otherwise dispose of, or transfer, or announce any intention to do so, any Common Shares, whether now owned directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership, or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise other than pursuant to a take-over bid or any other similar transaction made generally to all of the shareholders of the Corporation, or with the prior written consent of BMO, such consent not to be unreasonably withheld;
(9) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Lead Underwriter, on behalf of the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;contemplated or threatened by any regulatory authority or the TSX or NYSE; and
(ivd) since the respective dates Prospectus Supplement is true and correct in all material respects and contains no misrepresentation, constitute full, true and plain disclosure of all material facts relating to the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of Offered Securities and to the Corporation and its Subsidiaries (taken considered as a whole), whole and do not contain an untrue statement of a material fact or any development involving omit to state a prospective material adverse change, financial or otherwisefact necessary to make the statements therein, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital light of the Corporation and its Subsidiaries (taken as a whole)circumstances in which they were made, from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)not misleading;
(v10) none the Underwriters receiving a certificate from TSX Trust Company as to the number of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation Common Shares issued and outstanding as at the time end of the relevant document was filed that has not since been corrected;
(vi) Business Day on the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii11) the Acquisition has not lapsed Corporation having delivered to the Underwriters evidence of the approval (or been withdrawnconditional approval) of the listing and posting for trading of the Initial Shares and Over-Allotment Shares on the TSX and NYSE, subject only to satisfaction by the Corporation of standard listing conditions;
(viii12) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i13) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The obligations of Purchaser acknowledges that the Dealers hereunder are subject Company’s obligation to issue and sell the Purchased Securities to the satisfaction of Purchaser is subject to, among other things, the following conditions:
(a) at the Time of ClosingPurchaser or Beneficial Purchaser, the Corporation will cause its counselif any, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver executing and returning to the Dealers and their counselAgent, Torys LLPin accordance with Section 4 hereof, a favourable legal opinion with respect to all such matters as documents required by the Dealers may reasonably requestSecurities Laws for delivery on behalf of the Purchaser or Beneficial Purchaser, if any, including, without limiting limitation, the generality applicable documents set out in Section 4 hereof, by no later than the time specified on page 2 hereof;
(b) the fulfilment at or before the Closing Time of each of the foregoing: to conditions of the existence Closing set out in the Agency Agreement except those conditions that are waived by the Agent (in accordance with Section 5);
(c) the Company having obtained all required regulatory and corporate power approvals, and capacity all requisite third party consents, to permit the completion of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of transactions contemplated hereby;
(Ad) the provisions of Company accepting this Subscription Agreement;
(e) the constating documents of the Corporationoffer, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuanceissue, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be Special Warrants being exempt from the requirements to file a prospectus requirements of or deliver an offering memorandum (as defined in applicable Canadian Securities Laws) or any similar document under applicable Securities Laws relating to the issue, sale and no prospectus will be requireddelivery of the Special Warrants, no other document will or the Company having received such orders, consents or approvals as may be required to be filedpermit such issue, no proceeding will be required to be taken sale and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale delivery of the Notes and Special Warrants without the payment requirement of filing a prospectus or delivering an offering memorandum or any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.similar document; and
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(iif) the representations and warranties of the Corporation contained herein are Purchaser being true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time Closing Time. The Purchaser and each Beneficial Purchaser, if any, acknowledges and agrees that the Company will be required to provide to the Securities Commissions a list setting out the identities of the Beneficial Purchasers of the Special Warrants. Notwithstanding that the Purchaser may be purchasing Special Warrants as an agent on behalf of an undisclosed principal (if permissible under the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stableSecurities Laws), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver Purchaser agrees to provide, on request, particulars as to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming identity of such respective ratings;
(e) undisclosed principal as may be required by the Supplemental Indentures shall have been executed and delivered by each of Company or the Corporation and the Trust Company Agent in form and substance satisfactory order to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance comply with the provisions of this Agreement foregoing and the Trust IndentureSecurities Laws.
Appears in 1 contract
Conditions of Closing. The obligations It is a condition of the Dealers hereunder are subject Closing that (i) all documents required to be completed and signed in accordance with Section 2 hereof be received on or prior to the satisfaction of Closing Date, (ii) the following conditions:
(a) at the Time of ClosingCompany will have obtained all necessary approvals and consents, the Corporation will cause its counselincluding regulatory, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPcourt and Exchange approvals, to deliver to the Dealers purchase and their counselsale contemplated by this Subscription Agreement, Torys LLP, a favourable legal opinion with respect to all such matters as (iii) the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved Securities contemplated by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Subscription Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the requirement to file a prospectus requirements of Canadian and any requirement to deliver an offering memorandum under applicable Securities Laws and no prospectus relating to the sale of the Securities, or the Company will be requiredhave received such orders, no other document will consents or approvals as may be required to be filedpermit such sale without the requirement to file a prospectus or deliver an offering memorandum; (iv) the Company's counsel shall have delivered a legal opinion addressed to the Subscriber and its solicitors respecting, no proceeding will be required among other matters, the due incorporation and organization of the Company, the due authorization, execution and delivery of this Subscription Agreement and the Investment Agreement, the authorized capital of the Company, the due allotment and issuance of the Shares to be taken the Subscriber as fully paid and no approval, permit, consent, order, or authorization non-assessable shares and the restrictions on the transferability of any regulatory authority will be required to be obtained the Securities under Canadian Securities Laws to issue and deliver the Notes to such purchasersLaws, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, all in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the DealersSubscriber's solicitors, acting reasonably, certifying for ; and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none if required by the rules of the documents filed with Canadian Exchange, the Company will have obtained conditional approval of the Exchange for the listing of the Shares and the Warrant Shares which, in any event will be listed upon Closing. The Subscriber acknowledges that the Company may be required to provide the Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, other authorities pursuant to the Corporation’s Knowledge, will prevent Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the Acquisition Closing Date from occurring on or prior to “PCMLTFA”) with a list setting forth the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms identity of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any beneficial purchaser of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust IndentureUnits.
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters to purchase the Initial Units at the Closing Time on the Closing Date and to purchase any Additional Units at the Closing Time on an Option Closing Date shall be subject to the satisfaction of the following conditionsfollowing:
(a) the Underwriters will receive at the Closing Time of Closing, a legal opinion addressed to the Corporation will cause its Underwriters and their counsel dated and delivered on the Closing Date from the Company’s Canadian counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, and from local counsel (only in respect of matters governed by laws of the Qualifying Jurisdictions where the Company’s Canadian counsel is not qualified to deliver practice), in each case in form and substance satisfactory to the Dealers Underwriters and their counsel, Torys LLPacting reasonably, a favourable legal opinion with respect to the following matters, subject to such reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriters’ counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws of the Province of British Columbia, and has all such matters requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the Dealers case may reasonably request, including, without limiting the generality be) of the foregoing: to Company and, in the existence case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non- assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Subordinate Voting Shares;
(viii) the Company has all necessary corporate power and capacity capacity: (i) to execute and deliver this Agreement and the Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over- Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants issuable upon exercise of the CorporationOver-Allotment Option; and (iv) to issue, sell and deliver the creation, authorization, issue and sale Warrant Shares upon the exercise of the Notes; Warrants;
(ix) all necessary corporate action has been taken by the authorization Company to authorize the execution and delivery of each of the Trust Indenture; that Prospectus and any Supplementary Material and the attributes filing thereof with the Securities Commissions;
(x) the Company has duly authorized, executed and delivered, this Agreement and the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Notes Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of Additional Shares and Additional Warrants upon exercise of the Over- Allotment Option, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are consistent customary of an offering of this nature;
(xi) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over- Allotment Option, the offering, creation (as applicable) issue, sale and delivery of Additional Shares and Additional Warrants upon exercise of the Over- Allotment Option, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated by this Agreement and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of British Columbia and the federal laws of Canada applicable therein;
(xii) if issued, the form and terms of the definitive certificate representing the Subordinate Voting Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the TrusteeBusiness Corporations Act (British Columbia), at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the CorporationCompany and rules, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions by-laws and regulations of the CBCA CSE;
(xiii) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares and the Business Corporations Act duly appointed warrant agent and registrar and transfer agent for the Warrants;
(Ontario); the issuance xiv) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or appropriate regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to preserve or protect qualify the validity or enforceability distribution of the Trust Indenture; Initial Shares and that the offeringInitial Warrants comprising the Initial Units, issuance, sale the Over-Allotment Option and delivery the Additional Shares and the Additional Warrants upon exercise of the Notes Over-Allotment Option in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xv) the issuance by the Corporation to purchasers in Company of the Offering Jurisdictions, Warrant Shares in accordance with and pursuant to the terms and conditions of this Agreement, is, or will be the Warrants and the Warrant Indenture is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus will be required, no or other document will be is required to be filed, no proceeding will is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares;
(xvi) the first trade in Warrant Shares underlying the Warrants is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent, order, consent or authorization of any regulatory authority will be authorities is required to be obtained by the Company under Canadian Applicable Securities Laws of the Qualifying Jurisdictions to issue permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and deliver the Notes to terms and conditions of their registration, provided that (i) such purchasers, other than the filing of trade is not a Form “control distribution” as that term is defined in National Instrument 45-106F1 prescribed 102 – Resale of Securities at the time of such trade, (ii) the Company is a reporting issuer (as defined under NI 45-106 within 10 days after Applicable Securities Laws) at the date time of issue such first trade, and (iii) such first trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution;
(xvii) relying solely on the conditional approval letter (or equivalent) from the CSE, that the Shares and Warrants comprising the Initial Units and Additional Units and the Warrant Shares issuable upon the exercise of the Notes Warrants and Additional Warrants have been conditionally approved for listing on the payment of any fees related theretoCSE, subject only to Standard Listing Conditions; and
(xviii) confirming the statements under the heading “Eligibility for Investment” in the Prospectus, subject to the qualifications, assumptions and limitations set out under such heading. It is understood that In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (province or alternatively make arrangements provinces in which the Company’s Canadian counsel are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, circumstances but only as to matters of fact, on certificates of an officer officers of the Corporation.Company and others;
(b) at the Time of Closing, the Dealers will Underwriters shall have received from their counsel, Torys LLP, a legal opinion from internal counsel of the Company, addressed to the Underwriters and legal counsel to the Underwriters with respect to: (i) the existence of each Cresco Subsidiary; (ii) the issued and outstanding securities of each Cresco Subsidiary and the securities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of each Cresco Subsidiary to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably. In connection with such opinion, internal counsel of the Company may rely on, to the extent appropriate in the circumstances but only as to matters of fact, on certificates of officers of the Company, Cresco Subsidiaries and others;
(c) the Underwriters shall have received a favourable legal opinion from Fox Rothschild LLP regarding certain U.S. state regulatory matters, in form and substance satisfactory to the Underwriters, acting reasonably, which opinion may be subject to usual and customary qualifications for opinions of this type, in form and content satisfactory to the Underwriters’ counsel, acting reasonably;
(d) if any Initial Units or Additional Units are sold to purchasers in the United States or to or for the account or benefit of U.S. Persons, the Underwriters will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States or to or for the account or benefit of U.S. Persons will be required under the U.S. Securities Act, such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Initial Units and Additional Units;
(e) the Underwriters shall have received a certificate dated the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Underwriters, in form and content satisfactory to the Underwriters’ counsel, acting reasonably, with respect to:
(i) the notice of articles and articles of the Company;
(ii) resolutions of the Company’s board of directors relevant to, among other things, the issue and sale of the Shares and Warrants comprising the Offered Units to be issued and sold by the Company and the Warrant Shares issuable upon exercise of the Warrants, and the authorization of this Agreement and the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Underwriters shall have received a certificate of status or the equivalent dated within one Business Day of the Closing Date, in respect of the Company and each Cresco Subsidiary;
(g) the Company shall cause ▇▇▇▇▇▇ LLP, MNP LLP and FGMK LLC to deliver to the Underwriters a “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letters referred to in Section 5(1)(c) hereof;
(h) prior to Closing, a “short form” comfort letter dated the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, addressed to the Underwriters and the directors of the Company from the current auditor of CannaRoyalty Corp. with respect to (i) the unaudited condensed interim consolidated financial statements of CannaRoyalty Corp. incorporated by reference in the Offering Documents for the three months ended March 31, 2019 and March 31, 2019, together with the notes thereto; and (ii) the audited financial statements of CannaRoyalty Corp. incorporated by reference in the Offering Documents for the years ended December 31, 2018 and 2017, together with the notes thereto and the report of the auditor attached thereto, which letter shall be based on a review by such matters as the Dealers may reasonably require relating auditors within a cut-off date and based on a review of not more than two Business Days prior to the distribution of the Notes Closing Date, which letter shall be in addition to any auditors’ comfort and consent letters addressed to the extent governed by Securities Commissions in the laws of Alberta, Ontario or Québec.Qualifying Jurisdictions;
(ci) at the Time of Closing, the Corporation will Company shall deliver to the Dealers a certificate Underwriters, at the Closing Time, certificates dated the Closing Date or the Option Closing Date, as applicable, addressed to the Dealers and their counsel, Underwriters and signed by the chief executive officer Chief Executive Officer of the Company and the chief financial officer Chief Financial Officer of the Corporation Company, or such other officers senior officer(s) of the Corporation Company as may be acceptable to the Dealers, acting reasonablyUnderwriters, certifying for and on behalf of the Corporation (Company and without personal liability) , to the effect that:
(i) the Corporation Company has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation Company contained herein are true and correct in all material respects (except for those that are qualified by materiality or Material Adverse Effect which shall be true and correct in all respects) as at the Closing Time (except to the extent such representations and warranties speak as of the Time a specific date or time in which case such as of Closing that specific date or time only) with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) the Decision Document has been issued by the Reviewing Authority for the Base Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Subordinate Voting Shares or other securities of the Company, or the Offered Units to be issued and sold by the Company has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, contemplated or threatened;; and
(iv) since the respective dates as of which information is given in the Disclosure Materials, Prospectus or any Supplementary Material (A) there has been no material adverse change, change (financial or otherwise, ) in the business, affairs, operations, assets (including intangible assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.o
Appears in 1 contract
Conditions of Closing. The obligations of Underwriters’ obligation to purchase the Dealers hereunder are Subscription Receipts pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, legal counsel to the Corporation (who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local legal counsel acceptable to them legal counsel to the Underwriters as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly existing under the Canada Business Corporations Act and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents and to issue and sell the Subscription Receipts, the Special Warrants, the Underlying Debentures and the Debenture Shares, as applicable;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and the Transaction Documents have been duly executed and delivered by the Corporation and each constitute a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions, limitations and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction;
(e) the execution and delivery of the Transaction Documents and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Subscription Receipts, Special Warrants, Underlying Debentures and Debenture Shares does not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles or by-laws of the Corporation or the Canada Business Corporations Act or Canadian Securities Laws;
(f) that the Subscription Receipts have been validly created, executed and issued by the Corporation and constitute valid and binding obligations of the Corporation enforceable against it in accordance with their terms;
(g) that the Special Warrants will, upon issuance pursuant to the conversion of the Subscription Receipts, be validly created, executed and issued by the Corporation and constitute valid and binding obligations of the Corporation enforceable against it in accordance with their terms;
(h) that the Underlying Debentures have been duly authorized and validly allotted for issuance by the Corporation and, when issued in accordance with the terms of the Special Warrants, will be outstanding as fully paid securities of the Corporation;
(i) that the Debenture Shares have been duly authorized and validly allotted for issuance by the Corporation and, when issued in accordance with the terms of the Underlying Debentures, will be outstanding as fully paid and non-assessable shares in the capital of the Corporation;
(j) assuming that each of the Purchasers residing in the Qualifying Jurisdictions is an “accredited investor” as such term is defined in NI 45-106 and is purchasing as principal, that the issuance and sale by the Corporation of the Subscription Receipts to such Purchasers are exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed (other than specified forms accompanied by requisite filing fees), proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws to permit such issuance and sale; and that the issuance of the Special Warrants upon the conversion of the Subscription Receipts, the issuance of the Underlying Debentures upon the exercise or deemed exercise of the Special Warrants and the issuance of the Debenture Shares upon the conversion of the Underlying Debentures will be exempt from the prospectus requirements of applicable Canadian Securities Laws, and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws to permit such issuances;
(k) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws in connection with the first trade of the Special Warrants or the Underlying Debentures provided that four months have lapsed since the Closing Date and subject to the standard assumptions and qualifications;
(l) that if a Qualification Prospectus qualifying the distribution of the Underlying Debentures and the Debenture Shares is filed before the Deemed Exercise Date: (A) such Underlying Debentures and Debenture Shares would not be subject to any statutory hold period or restricted period under the applicable Canadian Securities Laws, and (B) no documents would be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under the applicable Canadian Securities Laws in order to permit the first trade of such Underlying Debentures and Debenture Shares in the Qualifying Jurisdictions, subject to the standard assumptions and qualifications;
(m) The Special Warrants (upon the due conversion of the Subscription Receipts), the Underlying Debentures (upon the due conversion of the Special Warrants) and the Debenture Shares (upon the due conversion of the Underlying Debentures) would if issued on the date hereof be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered retirement income funds, registered disability savings plans, deferred profit sharing plans, (except, in the case of the Underlying Debentures, deferred profit sharing plans to which the Corporation, or an employer that does not deal at arm’s length with the Corporation, has made a contribution), registered education savings plans and tax-free savings accounts, each as defined in the Tax Act, if and provided that at all material times (i) the Corporation is a “public corporation” (as defined in the Tax Act), and (ii) in the case of the Special Warrants, the Corporation is not a “connected person” (as defined in the Tax Act) under the governing plan of the Trust;
(n) subject only to the standard listing conditions and the requirements set forth in the conditional approval letter of the TSX, the Underlying Debentures have been conditionally listed or approved for listing on the TSX;
(o) subject only to the standard listing conditions and the requirements set forth in the conditional approval letters of the TSX, the Debenture Shares have been conditionally listed or approved for listing on the TSX and NASDAQ, as applicable; and
(p) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing, in a form acceptable to the Dealers will have received from Underwriters and their legal counsel, Torys LLPacting reasonably.
(2) if any Subscription Receipts are sold to Purchasers in the United States, the Co-Lead Underwriters receiving at the Time of Closing a favourable legal opinion dated addressed to the Closing DateCo-Lead Underwriters, in form and substance satisfactory to the DealersCo-Lead Underwriters, with respect to such matters acting reasonably, dated as of the Dealers may reasonably require relating Closing Date, from T▇▇▇▇▇▇▇ S▇▇▇▇▇▇ LLP, to the distribution effect that registration of (i) the Subscription Receipts upon offer and sale pursuant to this Agreement, including Schedule “A” hereto; (ii) the issuance of the Notes to Special Warrants upon conversion of the extent governed by Subscription Receipts; (iii) the laws issuance of Alberta, Ontario the Underlying Debentures upon exercise or Québec.deemed exercise of the Special Warrants; and (iv) the issuance of the Debenture Shares upon the conversion of the Underlying Debentures will not be required under the U.S. Securities Act;
(c3) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersCo-Lead Underwriters, acting reasonably, in form and content satisfactory to the Co-Lead Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Qualification Prospectus, the sale of the Subscription Receipts and, as applicable, the authorization of the Transaction Documents and the transactions contemplated therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one (1) Business Day prior to the Closing Date;
(5) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Co-Lead Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Subscription Receipts or any other securities of the Corporation (including the Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivb) since the respective dates of the Disclosure Materials, (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its (B) no transaction has been entered into by either the Corporation or the Subsidiaries (taken which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record or the Public Disclosure Materials (as they existed at the respective dates thereof)Documents;
(vc) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that there has not since been corrected;
(vi) the Acquisition has not been terminated or amended no change in any material respect, no fact (which includes the disclosure of any previously undisclosed material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated fact) contained in the 2.7 AnnouncementPublic Disclosure Documents which fact or change is, and or may be, of such a nature as to render any statement in the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on Public Disclosure Documents misleading or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended untrue in any material respect, no material provision has been waived by the Corporation and no event has occurred respect or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and which would result in all material respects as contemplated a misrepresentation in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change Public Disclosure Documents or which would result in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, Public Disclosure Documents not complying with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in factapplicable Canadian Securities Laws;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for Corporation has complied in all material respects with all the Notes shall be at least “Baa1” (stable), covenants and satisfied in all material respects all the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” terms and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each conditions of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required Transaction Documents on its part to be taken by or on behalf of the Corporation complied with and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:
(i) execute or such covenants, terms and deliver this Agreement and all other documents contemplated under this Agreementconditions have been waived; and
(iie) createthe representations and warranties of the Corporation contained in this Agreement, issue and sell in any certificates of the Notes Corporation delivered pursuant to or in accordance connection with this Agreement, are true and correct in all material respects as of the provisions Time of Closing as if such representations and warranties were made as at the Time of Closing, after giving effect to the transactions contemplated hereby;
(6) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(6) of this Agreement;
(7) the Underwriters receiving, at the Time of Closing, a certificate from Computershare Investor Services Inc. as to the number of Shares issued and outstanding as at the end of business day on the date prior to the Closing Date;
(8) at the Time of Closing, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the sale of the Subscription Receipts or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to the knowledge of the Corporation, threatened by any securities regulatory authority or the TSX or NASDAQ;
(9) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Underlying Debentures on the TSX, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the conditional listing approval letters of the TSX;
(10) the Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Debenture Shares on the TSX and NASDAQ, as applicable, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the conditional listing approval letters of the TSX and NASDAQ, as applicable;
(11) the Corporation complying with all of its covenants and obligations under this Agreement required to be satisfied at or prior to the Time of Closing;
(12) each of the Transaction Documents shall have been executed and delivered by the parties thereto in form and substance satisfactory to the Underwriters and Underwriters’ counsel, acting reasonably;
(13) the Underwriters being satisfied, in their sole discretion, with their due diligence review of the Corporation and the Trust IndentureAcquisition and each of their respective businesses, operations and financial condition;
(14) the Underwriters not having exercised any rights of termination set forth herein; and
(15) the Underwriters having received at the Time of Closing such further certificates, opinions of legal counsel and other documentation from the Corporation contemplated herein, provided, however, that the Underwriters or their legal counsel shall request any such certificate or document within a reasonable period prior to the Time of Closing that is sufficient for the Corporation to obtain and deliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agent to complete the satisfaction Closing and of the following conditionsPurchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agent:
(a) at the Time of Closing, the Corporation will cause shall have caused its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers Agent legal opinions dated and their counseldelivered on the Closing Date, Torys LLPas applicable, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to all such matters as the Dealers may reasonably requestfollowing matters:
(i) the Corporation being a "reporting issuer", includingor its equivalent, without limiting the generality in each of the foregoing: to Qualifying Jurisdictions and not in default under Applicable Securities Laws in the existence and Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Prospectus;
(iv) the authorized and issued share capital of the Corporation; ;
(v) the creationCorporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, authorizationincluding to grant the Over-Allotment Option, to create, issue and sale sell the Offered Securities, the Compensation Warrants, to issue the Warrant Shares issuable upon the exercise of the Notes; Warrants, to issue the authorization Compensation Unit Shares and Compensation Unit Warrants issuable upon the exercise of the Trust Indenture; that Compensation Warrants and to issue the attributes Compensation Warrant Shares issuable upon exercise of the Notes are consistent Compensation Unit Warrants;
(vi) the Corporation has the necessary corporate power and authority to sign and deliver the Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions and the delivery of the U.S. Placement Memorandum;
(vii) the Offered Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the form and terms of the Compensation Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the description requirements of the Business Corporations Act (British Columbia);
(ix) the Warrants and the Compensation Warrants have been validly authorized, issued and created;
(x) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the Term Sheets; that terms of the form Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xi) the Compensation Unit Shares issuable upon exercise of global certificate representing the Notes has Compensation Warrants having been approved reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Compensation Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Compensation Unit Warrants issuable upon exercise of the Compensation Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Compensation Warrant Certificates, being validly issued;
(xiii) the Compensation Warrant Shares issuable upon exercise of the Compensation Unit Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Compensation Unit Warrant certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiv) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the grant of the Over-Allotment Option, the issuance and sale of the Offered Securities, and the Compensation Warrants, the issuance of the Warrant Shares upon exercise of the Warrants, and the issuance of the Compensation Unit Shares and Compensation Unit Warrants upon exercise of the Compensation Warrants, the issuance of the Compensation Warrant Shares upon exercise of the Compensation Unit Warrants, and the Transaction Documents having been executed and delivered by the Corporation and complies constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that contribution may be unenforceable;
(xv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation ofCorporation, including the grant of the Over-Allotment Option, the issuance and sale of the Offered Securities and the performance by the Corporation of its obligations under this Agreement and the Trust IndentureCompensation Warrants, including the issuance of the NotesWarrant Shares upon exercise of the Warrants, the issuance of the Compensation Unit Shares and Compensation Unit Warrants upon exercise of the Compensation Warrants, and the issuance of the Compensation Warrant Shares upon exercise of the Compensation Unit Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (Ai) the provisions of the constating documents and by-laws of the Corporation, ; or (Biii) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application Applicable Laws of the Province of Ontario or of Canada British Columbia and federal laws applicable therein is therein;
(xvi) all necessary in order to preserve or protect the validity or enforceability documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the Trust Indenture; and that the offering, issuance, sale and delivery appropriate regulatory authority in each of the Notes Qualifying Jurisdictions having been obtained by the Corporation to purchasers qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvii) that the statements set forth in the Offering JurisdictionsProspectus under the caption "Eligibility for Investment" and "Certain Material Canadian Federal Income Tax Considerations" in the Prospectus Supplement are accurate, subject to the limitations and qualifications set out therein;
(xviii) the attributes of the Offered Securities are consistent, in accordance all material respects, with the descriptions in the Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities and the Compensation Warrants for distribution in the Qualifying Jurisdictions by or through investment dealers or brokers who are registered under the Applicable Canadian Securities Laws of the Qualifying Jurisdictions and who have complied with the relevant provisions of the Applicable Canadian Securities Laws of the Qualifying Jurisdictions;
(xx) the issue and delivery by the Corporation in the Qualifying Jurisdictions of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms and conditions of this Agreement, isthe Warrant Indenture being exempt from, or will be exempt from not subject to, the prospectus requirements of Applicable Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus will be required, no or other document will be documents being required to be filed, no proceeding will be required to be proceedings taken and no approvalor approvals, permitpermits, consent, order, consents or authorization of any regulatory authority will be authorizations required to be obtained under Applicable Canadian Securities Laws of the Qualifying Jurisdictions (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Canadian Securities Laws of the Qualifying Jurisdictions (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a "distribution" (as defined under Applicable Canadian Securities Laws of the Qualifying Jurisdictions);
(xxii) the issue and deliver delivery by the Notes Corporation in the Qualifying Jurisdictions of the Compensation Unit Shares, Compensation Unit Warrants and Compensation Warrant Shares to such purchasersthe holders of Compensation Warrants and Compensation Unit Warrants, as applicable, upon their exercise pursuant to the terms and conditions of the Compensation Warrant Certificates and Compensation Unit Warrant certificate being exempt from, or not subject to, the prospectus requirements of Applicable Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Canadian Securities Laws of the Qualifying Jurisdictions (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the filing first trade in, or resale of, the Compensation Unit Shares issuable upon exercise of the Compensation Warrants and the Compensation Warrant Shares issuable upon exercise of the Compensation Unit Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Canadian Securities Laws of the Qualifying Jurisdictions and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Canadian Securities Laws of the Qualifying Jurisdictions (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a Form "control distribution" (as defined in National Instrument 45-106F1 prescribed under NI 45-106 within 10 days after 102 - Resale of Securities), the date of issue and sale Corporation is a reporting issuer at the time of the Notes trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the payment course of any fees related theretoor incidental to a "distribution" (as defined under Applicable Canadian Securities Laws of the Qualifying Jurisdictions);
(xxiv) all filing have been made with the CSE in connection with the issuance and listing of the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Compensation Unit Shares; and (iv) the Compensation Warrant Shares, subject only to the Standard Listing Conditions;
(xxv) Computershare Trust Company of Canada having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) Computershare Investor Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. It is understood that In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Selling Jurisdictions acceptable to them counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities and the Compensation Warrants or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada the province in which they are qualified to practise and may rely, to the Provinces extent appropriate in the circumstances, as to matters of Ontariofact on certificates of officers of the Corporation and others;
(b) if any Offered Securities are sold to Purchasers in the United States or to, Québecor for the account or benefit of, British Columbia and AlbertaU.S. Persons or persons in the United States, (or alternatively make arrangements to have such opinions of local counsel directly the Agent receiving, at the Closing Time, a legal opinion dated the Closing Date, addressed to the Dealers)Agent, in form and substance acceptable to the Agent, acting reasonably, of United States legal counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers of the Corporation., public and exchange officials or the auditors or transfer agent of the Corporation), to the effect that the offer and sale of the Offered Securities in the United States or to, or for the account or benefit of, U.S. Persons or persons in the United States are not required to be registered under the U.S. Securities Act, provided such offers and sales are made in accordance with Schedule "A" hereto; it being understood that such counsel need not express its opinion with respect to any resale of the Offered Securities;
(bc) at the Time of Closing, the Dealers will Agent shall have received from their counsela certificate, Torys LLPdated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation's board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(d) the Corporation shall cause the Auditors to deliver to the Agent a legal opinion comfort letter, dated as of the Closing Date, in form and substance satisfactory to the DealersAgent, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution Closing Date, the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(e) the Agent shall have received a certificate, dated as of the Notes to the extent governed by the laws of AlbertaClosing Date, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as the Agent may be acceptable to the Dealers, acting reasonablyrequest, certifying for and on behalf of the Corporation (without personal liability) Corporation, after having made due enquiry and after having carefully examined the Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with in all material respects (except where already qualified by a materiality or Material Adverse Effect qualification, in which case the Corporation has complied in all respects) with all of the covenants and satisfied in all material respects (except where already qualified by materiality, in which case the Corporation has complied in all respects) all of the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose have having been instituted or are being pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Prospectus or any Supplementary Material, as the case may be;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of change relating to the Corporation and its Subsidiaries (the Subsidiaries, taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to since the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.date her
Appears in 1 contract
Conditions of Closing. The obligations of Underwriters’ obligation to purchase the Dealers hereunder are Shares pursuant to this Agreement shall be subject to the satisfaction of the following conditions:
(a) the Underwriters will receive, at the Time of Closing, favourable legal opinions dated the Corporation will cause its Closing Date from the Corporation’s counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ DuMoulin Black LLP, to deliver in form and substance satisfactory to the Dealers and their counselUnderwriters, Torys LLPacting reasonably, a favourable legal opinion with respect to all such matters as the Dealers may reasonably requestfollowing matters:
(i) the Corporation is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Jurisdictions and it is not listed as in default of any requirement of the Securities Laws in any of the Qualifying Jurisdictions;
(ii) the Corporation is a corporation existing under the laws of the Province of Ontario and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets;
(iii) the existence authorized capital of the Corporation consists of an unlimited number of Common Shares and an unlimited number of preference shares, issuable in series;
(iv) the Corporation has all necessary corporate power and capacity to execute and deliver this Agreement and perform its obligations under this Agreement;
(v) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Corporation; Preliminary Prospectus and the creation, authorization, issue Final Prospectus and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects filing thereof with the description thereof in the Term Sheets; that the form of global certificate representing the Notes Canadian Securities Commissions;
(vi) all necessary corporate action has been approved taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been executed and delivered by the Corporation and complies constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law and that enforceability is subject to the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the TrusteeLimitations Act, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that 2002 (Ontario);
(vii) the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance fulfilment of the Notes, terms hereof by the Corporation do not and will not result in a breach of any or default under, and do not and will not create a state of facts which, after notice or lapse
(Aviii) of time or both, will result in a breach of or default under, and do not and will not conflict with (i) the provisions of any law, statute, rule or regulation to which the Corporation is subject; (ii) the constating documents and by-laws of the Corporation, ; (iii) any resolutions of the shareholders or directors of the Corporation; or (Biv) any law judgment, order or decree, of general application applicable which counsel is aware, of any court, governmental agency or body or regulatory authority having jurisdiction over the Corporation in Canada; the rights, privileges, restrictions and conditions attaching to the Common Shares are accurately summarized in all material respects in the Offering Jurisdictions; Final Prospectus;
(ix) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the Trust Indenture complies appropriate regulatory authority in each of the Qualifying Jurisdictions to qualify the distribution or distribution to the public of the Shares in each of the Qualifying Jurisdictions through persons who are registered under applicable legislation and who have complied with the relevant provisions of such applicable legislation;
(x) the CBCA form and terms of the definitive certificate representing the Common Shares have been approved by the board of directors of the Corporation and comply in all material respects with the Business Corporations Act (Ontario); ) and the issuance rules and by-laws of the Notes TSX;
(xi) CIBC Mellon Trust Company has been duly appointed as the transfer agent and registrar for the Common Shares; and
(xii) the Shares will, on the Closing Date, be qualified investments under the Trust Indenture complies Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans and registered education savings plans. In connection with the provisions of the CBCA; the reporting issuer status of such opinion, counsel to the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to them the Underwriters, acting reasonably, as to the qualification for distribution of the Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements province in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) the Underwriters will receive, at the Time of Closing, favourable legal opinions dated the Dealers will have received Closing Date from their counselcounsel to Goldcorp and the Selling Shareholder, Torys ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to the following matters:
(i) each of Goldcorp and the Selling Shareholder is a corporation existing under the laws of the jurisdiction of its incorporation, amalgamation or continuance, as the case may be;
(ii) each of Goldcorp and the Selling Shareholder has all requisite corporate power and capacity to execute, deliver and perform its obligations under this Agreement;
(iii) all necessary corporate action has been taken by each of Goldcorp and the Selling Shareholder to authorize the execution and delivery of this Agreement and the performance of their respective obligations hereunder and this Agreement has been executed and delivered by each of Goldcorp and the Selling Shareholder and constitutes a legal, valid and binding obligation of each of Goldcorp and the Selling Shareholder, enforceable against each of Goldcorp and the Selling Shareholder in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law and that enforceability is subject to the provisions of the Limitations Act, 2002 (Ontario);
(iv) the execution and delivery of this Agreement, the fulfilment of the terms hereof by each of Goldcorp and the Selling Shareholder and the sale and delivery of the Shares to be sold at the Time of Closing do not and will not result in a breach of or default under, and do not and will not create a state of facts that, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with any of the terms, conditions or provisions of the articles, by-laws or other constating documents or resolutions of the directors or shareholders of Goldcorp or the Selling Shareholder;
(c) for purposes of Schedule “A”, if any Shares are sold by any Selling Firm in transactions requiring an exemption from the registration requirements under the U.S. Securities Act, the Undewriters will receive, at the Time of Closing, a favourable legal opinion dated the Closing Date from U.S. counsel to the Corporation, ▇▇▇▇▇▇ & Whitney LLP, to the effect that no registration of the Shares will be required under the U.S. Securities Act, such opinion to be subject to such qualifications and assumptions as the Underwriters may agree, acting reasonably, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of the Shares;
(d) the Underwriters will receive, at the Time of Closing, a favourable legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters, acting reasonably, from Québec counsel to the Corporation, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., regarding compliance with the laws of Québec relating to the use of the French language in connection with the documents (including the Preliminary Prospectus, the Final Prospectus and any Supplementary Material, other than with respect to such matters as the Dealers may reasonably require relating Financial Information therein) to the distribution of the Notes be delivered to the extent governed by the laws of Alberta, Ontario or purchasers in Québec.;
(ce) the Underwriters will receive, at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer Director, Legal and the chief financial officer Assistant Corporate Secretary of the Corporation or such other officers senior officer(s) of the Corporation as may be acceptable to the DealersUnderwriters, in form and content satisfactory to the Underwriters, acting reasonably, with respect to:
(i) the articles and by-laws of the Corporation;
(ii) the resolutions of the Corporation’s board of directors relevant to the Prospectus and the authorization of this Agreement and the transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Corporation;
(f) the Underwriters will receive, at the Time of Closing, a comfort letter dated the Closing Date from the auditors of the Corporation, Deloitte & Touche LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two business days prior to the Closing Date the information contained in the comfort letter referred to in paragraph 5(a)(vi) hereof;
(g) the Underwriters will receive, at the Time of Closing, a certificate dated the Closing Date signed by the Chief Executive Officer of the Corporation and the Chief Financial Officer of the Corporation, or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of at the Time of Closing Closing, with the same force and effect as if made on and as at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) decision documents have been issued by the Canadian Securities Commissions in the Qualifying Jurisdictions for the Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Canadian Securities Laws or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries the Subsidiary on a consolidated basis, and (taken B) no transaction has been entered into by any of the Corporation or the Subsidiary which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials (Supplementary Material, as they existed at the respective dates thereof);case may be; and
(v) none there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the documents filed Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been correctedLaws;
(vih) the Acquisition has not been terminated representations and warranties of the Corporation, Goldcorp and the Selling Shareholder contained in this Agreement will be true and correct as of the Time of Closing as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed or amended in any material respect, no material provision has been waived complied with by the Corporation Corporation, Goldcorp or the Selling Shareholder will have been performed and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or complied with prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Datetime;
(viii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respectUnderwriters will receive, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, a certificate dated the Closing Date signed by the Chief Executive Officer and no rating agency has placed the Chief Financial Officer of Goldcorp, or such other senior officer(s) thereof as may be acceptable to the Underwriters, certifying for and on behalf of Goldcorp and the Selling Shareholder, and without personal liability, after having made due enquiries and after having carefully examined the Final Prospectus and any Supplementary Material, that;
(i) Goldcorp and the Selling Shareholder have complied with all the covenants and satisfied all the terms and conditions of this Agreement on their part to be complied with and satisfied at or prior to the securities Time of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the NotesClosing; and
(xii) as to such other matters the representations and warranties of a factual nature as the Dealers Goldcorp and the Dealers’ counsel may reasonably request; Selling Shareholder contained herein are true and such statements shall be true in factcorrect as at the Time of Closing, with the same force and effect as if made on and as at the Time of Closing after giving effect to the transactions contemplated hereby;
(dj) the credit rating issued Underwriters will receive, at the Time of Closing, a certificate dated the Closing Date signed by ▇▇▇▇▇’▇ Investors Servicethe Director, Inc. for Legal and Assistant Corporate Secretary of Goldcorp, or such other senior officer(s) of Goldcorp as may be acceptable to the Notes shall be at least “Baa1” Underwriters, in form and content satisfactory to the Underwriters, acting reasonably, with respect to:
(stable), i) the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” articles and by-laws of Goldcorp and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsSelling Shareholder;
(eii) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of Goldcorp and the Selling Shareholder relevant to the sale of the Shares and the authorization of the other agreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of Goldcorp and the Selling Shareholder;
(k) the Underwriters will receive, at the Time of Closing, a certificate from CIBC Mellon Trust Company as to the number of Common Shares issued and outstanding as at a date no more than two business days prior to the Closing Date;
(l) the Underwriters will receive, at the Time of Closing, a certificate of status or the equivalent (if applicable) in respect of the Corporation and the Subsidiary issued by the appropriate regulatory authority in the jurisdiction in which the Corporation and the Subsidiary are formed, which certificates shall be dated no more than two business days prior to the Closing Date;
(m) the Underwriters will receive, at the Time of Closing, a certificate from each Subsidiary and all requisite filings with governmental authorities, will have occurred at Canadian Securities Commission confirming that the Corporation is a reporting issuer or the equivalent in each Qualifying Jurisdiction (if available) which certificates shall be dated no more than two business days prior to the Closing Date; and
(n) prior to the Time of Closing, the Underwriters and Goldcorp shall enter into a lock-up agreement, in form and substance acceptable to the Underwriters, acting reasonably, whereby Goldcorp shall covenant and agree, on its own behalf and on behalf of any subsidiary of Goldcorp that exercises control or direction over any securities of the Corporation (collectively, the “Goldcorp Entities”), that the Goldcorp Entities will not, from the date hereof to the date that is 90 days following the Closing so as to:
(i) execute and deliver this Agreement and all Date, directly or indirectly, offer, sell, contract to sell, lend, swap, or enter into any other documents contemplated under this Agreement; and
(ii) createagreement to transfer the economic consequences of, issue and sell or otherwise dispose of or deal with, or publicly announce any such intention, whether through the Notes in accordance with facilities of a stock exchange, by private placement or otherwise, securities of the provisions Corporation held by the Goldcorp Entities, directly or indirectly, without first obtaining the written consent of this Agreement and GMP on behalf of the Trust Indenture.Underwriters, which consent will not be unreasonabl
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Units pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Units and the Over-Allotment Units, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of ClosingUnderwriters receiving favourable legal opinions from Stikeman Elliott LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Units for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly incorporated and existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) at the Time of ClosingCorporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement, the Dealers Warrant Indenture and the Warrant Certificates, as applicable, (ii) to create, issue and sell the Offered Units, (iii) to issue the Broker Warrants, and (iv) to grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates, as applicable, and the performance of its obligations under the Agreement, the Warrant Indenture and the Broker Warrant Certificates and Agreement, the Warrant Indenture and the Broker Warrant Certificates have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Warrant Indenture and the Broker Warrant Certificates may be limited by applicable law;
(e) the execution and delivery of this Agreement, the Warrant Indenture and the Broker Warrant Certificates and the fulfilment of the terms of this Agreement, the Warrant Indenture and the Broker Warrant Certificates by the Corporation and the issuance, sale and delivery of the Offered Units, the issuance and delivery of the Broker Warrants, the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Unit Shares have received from been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Unit Warrants have been validly created and issued as warrants of the Corporation;
(i) the Over-Allotment Warrants have been validly created and reserved for issuance and will, upon exercise of the Over-Allotment Option and payment of the consideration therefor, be issued as warrants of the Corporation;
(j) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) the Broker Warrants have been validly created and issued as warrants of the Corporation;
(l) the Warrant Shares, Over-Allotment Warrant Shares, Broker Unit Shares and the Broker Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, Over-Allotment Warrants, Broker Warrants or Broker Unit Warrants, as applicable, in accordance with their respective terms, the Warrant Shares, Over-Allotment Warrant Shares, Broker Unit Shares and the Broker Shares will be validly issued as fully paid and non- assessable shares in the capital of the Corporation;
(m) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Units in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(n) subject to the qualifications and assumptions set out therein, the statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(o) subject only to the standard listing conditions, the Unit Shares, the Over- Allotment Shares, the Warrant Shares, the Over-Allotment Warrant Shares, Broker Unit Shares and the Broker Shares have been conditionally listed or approved for listing on the CSE; and
(p) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably.
(2) the Underwriters receiving favourable legal opinions from counsel to each Subsidiary in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set out below:
(a) the Subsidiary having been incorporated and existing under applicable law of its jurisdiction of origin;
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(3) if any of the Offered Units are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer and sale of such Offered Units under Rule 144A, provided, in each case, that such offer, sale and delivery of Offered Units in the United States is made in compliance with this Agreement and the terms set out in Schedule “C” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of any Offered Units. In providing the foregoing opinion, such counsel may rely upon the covenants, representation and warranties of the Notes to Corporation and the extent governed by Underwriters set forth in this Agreement and Schedule “C” hereto, and upon the laws covenants, representation and warranties of Alberta, Ontario or Québec.any purchasers in the United States;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Units, the issuance and delivery of the Broker Warrants, the grant of the Over-Allotment Option, and the authorization of this Agreement and the Warrant Indenture and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from MNP LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Units or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus
(A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation or any Subsidiary which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials Supplementary Material, as the case may be; and
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as they existed at to render any statement in the respective dates thereof)Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws;
(v8) the Underwriters receiving the Broker Warrant Certificates;
(9) none the Underwriters receiving the executed lock-up agreements from each director and executive officer of the documents filed with Canadian Securities Regulators forming Corporation (other than as contemplated by Section 8(3)) in favour of the Corporation’s Information Record contained Underwriters in a misrepresentation form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(10) the Underwriters receiving a certificate from TSX Trust Company as to the number of Common Shares issued and outstanding as at the time end of business day on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii11) no order, ruling or determination having the Acquisition has not lapsed effect of ceasing or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended suspending trading in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating prohibiting the sale of the Notes; and
(x) as Offered Units or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to such other matters the knowledge of a factual nature as the Dealers and Corporation, threatened by any securities regulatory authority or the Dealers’ counsel may reasonably request; and such statements shall be true in factCSE;
(d12) the credit rating issued Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Unit Shares, Warrant Shares, Over-Allotment Shares, Over-Allotment Warrant Shares, Broker Unit Shares and Broker Shares on the CSE, subject only to satisfaction by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsof standard listing conditions;
(e13) the Supplemental Indentures shall have been executed Corporation complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i14) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii15) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations of the Dealers hereunder are Agents under this Agreement shall be subject to the satisfaction accuracy of the covenants, representations and warranties of the Corporation, the Manager and the Investment Manager contained in this Agreement as of the date hereof and as of the Closing Date or Option Closing Date, as the case may be, the performance of the parties hereto other than the Agents of their respective obligations under this Agreement and the following conditions:
(1) the Agents receiving, at the Time of Closing:
(a) The Agents shall have received at the Time of Closing, the Corporation will cause its counsel, a legal opinion from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to counsel to the DealersAgents, addressed to the Agents and counsel to the Agents as to the laws of Canada and the Qualifying Jurisdictions, which counsel in turn may rely upon the opinions of local counsel where they deem such reliance proper as to the laws other than those of Canada and Ontario and, as to matters of fact, on certificates of the auditors of the Corporation, public officials and officers of the Manager and correspondence between public and CSE officials with respect to such matters the following matters:
(i) as to the formation, incorporation and existence, as the Dealers case may reasonably require relating to the distribution be, of each of the Notes to Corporation and the extent governed by Manager under the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counselrespective governing jurisdictions, and signed by the chief executive officer power and capacity of each to carry on their respective businesses and to enter into and to carry out their respective obligations under this Agreement, and, in the chief financial officer case of the Corporation or such other officers only, the requisite power and authority of the Corporation to invest in accordance with the investment strategies set out in the Final Prospectus and to issue the Offered Units as may be acceptable contemplated by this Agreement and the Final Prospectus;
(ii) that the Corporation is authorized to issue an unlimited number of common shares and Warrants;
(iii) that all necessary action has been taken on behalf of each of the Corporation and the Manager to authorize the execution and delivery of each of the Amended Preliminary Prospectus, the Final Prospectus and, if applicable, any amendments to the DealersAmended Preliminary Prospectus and the Final Prospectus and the filing of such documents under the Passport System or Applicable Securities Laws;
(iv) the Corporation having all necessary corporate power and capacity to execute and deliver this Agreement, acting reasonablythe Warrant Indenture, certifying for the Warrant Certificates, the Option Certificates and the Material Contracts and to perform its obligations hereunder and thereunder, including to create, issue and sell the Unit, to issue the Unit Shares and to issue the Warrant Shares issuable upon exercise of the Warrants;
(v) that all necessary action has been taken by and on behalf of the Corporation (without personal liability) that:
(i) to authorize the Corporation has complied with all the covenants creation and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties issuance of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been correctedOffered Units;
(vi) the Acquisition has not Unit Shares having been terminated or amended in any material respectduly and validly authorized and that, no material provision has been waived by at the Corporation Time of Closing and no event has occurred or condition exists whichupon payment of the purchase price therefor, to the Unit Shares will be duly and validly issued as fully paid and non-assessable shares of the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or Warrant Shares issuable upon exercise of the Warrants have been withdrawnreserved for issuance by the Corporation and, upon the payment of the exercise price therefor, being validly issued as fully paid and non-assessable shares of the Corporation;
(viii) that the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by attributes of the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and Offered Units are consistent in all material respects as contemplated with the descriptions thereof in the Separation AgreementFinal Prospectus and, and if applicable, any amendment to the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation AgreementFinal Prospectus;
(ix) there has the execution and delivery of this Agency Agreement, the Warrant Indenture, the Warrant Certificates and the Material Contracts, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Units, the issuance of the Unit Shares, the issuance of the Option Certificates and the issuance of Warrant Shares upon exercise of Warrants, do not been any adverse change and will not (as the case may be) conflict with or result in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. a breach or Fitch Ratings Limited which change is continuing at the Time violation of Closing, and no rating agency has placed any of the securities terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Corporation on credit watch CBCA or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating the regulations thereunder; or
(ii) the constating documents and by-laws of the Notes; andCorporation;
(x) as to such other matters of a factual nature as the Dealers that this Agreement and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and Material Contracts to which the Corporation shall deliver to or the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall Manager is a party have been duly authorized and executed and delivered by on behalf of each of the Corporation and the Trust Company Manager constitute a legal, valid and binding obligation of the Corporation or the Manager, as applicable, enforceable against it in form accordance with their respective terms, except as enforcement of such agreements may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and substance satisfactory except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the Dealersability to sever unenforceable terms, acting reasonablymay be limited by applicable law;
(fxi) evidence satisfactory that Odyssey Trust Company, at its office in the City of Calgary, has been appointed as the registrar and transfer agent for the Offered Units;
(xii) that the Manager has been appointed as manager of the Corporation;
(xiii) that the Investment Manager has been appointed by the Manager to act as the Investment Manager of the Corporation;
(xiv) that CIBC World Markets Inc., at its principal offices in the City of Toronto, has been appointed as prime broker for the Corporation;
(xv) that all necessary documents have been filed and all requisite proceedings have been taken and all necessary approvals, permits, consents and authorizations of the appropriate regulatory authorities under the Applicable Securities Laws have been obtained by the Corporation to qualify the Units and, if sold, the Additional Units for Distribution in each of the Qualifying Jurisdictions through persons or companies duly registered under the applicable laws of the Qualifying Jurisdictions who have complied with the relevant provisions of such applicable legislation and the terms of their registration;
(xvi) that the Unit Shares and Warrants have been conditionally approved for listing by the CSE, subject only to the Dealers that satisfaction by the Corporation’s board Corporation of directors has authorized and approved this Agreement and customary post- closing conditions imposed by the Trust Indenture and, CSE in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretosimilar circumstances; and
(gxvii) all actions required to be taken by or on behalf that the statements in the Final Prospectus under the heading “Certain Canadian Federal Income Tax Considerations” is a summary of the Corporation and its Subsidiariessuch matters, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior subject to the Time of Closing so as to:
(i) execute assumptions, limitations and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell qualifications stated or referred to in the Notes in accordance with the provisions of this Agreement and the Trust IndentureFinal Prospectus.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, Closing a legal opinion from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation, Torys LLP, a favourable legal opinion with respect to all such the matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to set forth below:
(a) the existence and corporate power of the Corporation to enter into and perform its obligations under this Agreement;
(b) the corporate power and capacity of the Corporation; Corporation to carry on business and to own and lease its properties and assets;
(c) the creation, authorization, issue execution and sale delivery of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved and performance by the Corporation of this Agreement and complies with that the provisions execution and filing of the Trust Indenture; that Preliminary Prospectus and the Final Prospectus being authorized by all necessary corporate action on the part of the Corporation;
(d) the qualification of the Corporation has appointed the Trustee to carry on business as trustee under the Trust Indenture; that the Trustee, at its principal office an extra-provincial corporation in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; Ontario;
(e) that the execution and delivery by the Corporation of, of and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do does not and will not constitute or result in a violation or breach of any or a default under its articles of (A) the provisions of the constating documents of the Corporationincorporation, as amended, or (B) by-laws, any law laws of general application applicable in the Offering Jurisdictions; Qualifying Jurisdictions or, to the Trust Indenture complies with the provisions knowledge of the CBCA and the Business Corporations Act (Ontario); the issuance ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, any judgment, order or decree of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of any court, agency, tribunal, arbitrator or other authority to which the Corporation under applicable Canadian Securities Laws; is subject;
(f) that no authorization, consent or approval of, or filing, registration, filing qualification or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of Governmental Authority having jurisdiction in the Province of Ontario or of Canada applicable therein Qualifying Jurisdictions is necessary required by the Corporation in order to preserve or protect connection with the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale execution and delivery of the Notes or performance by the Corporation to purchasers of this Agreement;
(g) that this Agreement has been duly executed and delivered by the Corporation as a matter of corporate law in compliance with the Offering Jurisdictionslaws of its jurisdiction of incorporation, namely Canada, and with the provisions of its certificate and articles of incorporation, as amended, and its by-laws;
(h) that this Agreement constitutes a legal, valid and binding agreement of the Corporation enforceable against it in accordance with the its terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada Ontario;
(i) the authorized capital of the Corporation;
(j) the issuance of the Offered Shares having been authorized by all necessary corporate action on the part of the Corporation;
(k) subject to receipt of payment in full for them, that the Offered Shares will be validly issued as fully paid and non-assessable;
(l) all necessary documents having been filed, all requisite proceedings having been taken and all necessary approvals, permits, consents and authorizations having been obtained by the Corporation under the applicable Canadian securities laws of the Qualifying Jurisdictions to qualify the distribution of the Offered Shares and the Provinces Over-Allotment Option, and if the Over-Allotment Option is exercised in accordance with its terms, the Over-Allotment Shares: (i) to the public in the Qualifying Jurisdictions through registrants registered under the applicable Canadian securities laws of Ontariothe Qualifying Jurisdictions who have complied with the relevant provisions of such applicable legislation; and (ii) to such registrants purchasing as principals, Québecprovided that, British Columbia in both cases, the Preliminary Prospectus and the Final Prospectus are delivered to purchasers and filed with the regulators in each of the Qualifying Jurisdictions in accordance with applicable Canadian securities laws and the applicable fees are paid within the prescribed time periods;
(m) the accuracy of the statements under the heading of the Prospectus entitled “Eligibility for Investment”, subject to the assumptions, qualifications, limitations and restrictions set out therein;
(n) subject to the Standard Listing Conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(o) the reporting issuer status of the Corporation in B.C., Alberta, Ontario and Quebec; all subject to customary assumptions and qualifications (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may relyincluding reliance, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation) and in a form acceptable to the Underwriters and their counsel, acting reasonably.
(2) the Underwriters receiving at the Time of Closing a legal opinion from local securities counsel to the Corporation, with respect to the matters set forth below:
(a) the qualification of the Corporation to carry on business as an extra-provincial corporation in each of the Qualifying Jurisdictions other than B.C., Alberta, Ontario and Quebec, as applicable;
(b) all necessary documents having been filed, all requisite proceedings having been taken and all necessary approvals, permits, consents and authorizations having been obtained by the Corporation under the applicable Canadian securities laws of the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, to qualify the distribution of the Offered Shares and the Over-Allotment Option, and if the Over- Allotment Option is exercised in accordance with its terms, the Over-Allotment Shares:
(i) to the public in the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, through registrants registered under the applicable Canadian securities laws of the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, who have complied with the relevant provisions of such applicable legislation; and (ii) to such registrants purchasing as principals, provided that, in both cases, the Preliminary Prospectus and the Final Prospectus are delivered to purchasers and filed with the regulators in each of the in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable, in accordance with applicable Canadian securities laws and the applicable fees are paid within the prescribed time periods;
(c) the reporting issuer status of the Corporation in the Qualifying Jurisdiction other than B.C., Alberta, Ontario and Quebec, as applicable; all subject to customary assumptions and qualifications (including reliance, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or transfer agent of the Corporation) and in a form acceptable to the Underwriters and their counsel, acting reasonably.
(3) the Underwriters receiving at the Time of ClosingClosing the favourable legal opinion dated the Closing Date from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, United States counsel for the Dealers Corporation, to the effect that registration of the Offered Shares offered and sold in the United States in accordance with this Agreement (including Schedule “B” hereto) will have received from not be required under the U.S. Securities Act, in form and substance satisfactory to the Underwriters and their counsel, Torys LLPacting reasonably;
(4) the Underwriters receiving at the Time of Closing from local counsel in each jurisdiction of incorporation, organization or formation, as the case may be, of each Material Subsidiary, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersUnderwriters and their counsel, with respect to such matters as the Dealers may reasonably require relating acting reasonably, to the distribution effect that each of the Notes to the extent governed by Material Subsidiaries is a corporation or other form of entity existing under the laws of Albertathe jurisdiction in which it was incorporated, Ontario organized, formed, amalgamated or Québec.continued, as the case may be, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets and as to the registered ownership of the issued and outstanding securities of each Material Subsidiaries in those jurisdictions in which there are available public registers of issued and outstanding securities for the Material Subsidiary;
(c5) at The Underwriters receiving a title opinion from counsel in local counsel in Africa in respect of the Time of Closing, the Corporation will deliver Sabodala Property in form and substance satisfactory to the Dealers a certificate Underwriters, acting reasonably;
(6) the Underwriters receiving certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(7) the Underwriters receiving certificates of status and/or compliance for the Corporation and Gryphon Minerals Limited, each dated within one (1) Business Day prior to the Closing Date;
(8) the Underwriters receiving at the Time of Closing a “bring down” comfort letter dated the Closing Date from the current auditors of the Corporation, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(c);
(9) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or the Common Shares has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or its subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby, except for representations ;
(10) the Underwriters receiving at the Time of Closing a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific date other than business on the Business Day prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii11) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Shares or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority, the TSX or the ASX;
(iv12) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materials, there has been no material adverse change, financial approval (or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional approval) of the Corporation listing and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital posting for trading of the Offered Shares on the TSX, subject only to satisfaction by the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)of Standard Listing Conditions;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi13) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Closing;
(i14) execute the Underwriters not having exercised any rights of termination set forth herein;
(15) the Underwriters shall have received a lock-up agreement from the Purchasing Insider and deliver this Agreement and all other documents contemplated under this Agreement▇▇▇▇▇ ▇▇▇▇▇▇ in the form attached hereto as Schedule “C” subject to such changes as may be agreed to by the Co-Lead Underwriters on behalf of the Underwriters;
(16) the Concurrent Private Placement having been completed with the Purchasing Insider; and
(ii17) createthe Underwriters having received at the Time of Closing such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Time of this Agreement Closing that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligations obligation of the Dealers hereunder are Agents to sell and distribute any of the Debentures will be subject to the satisfaction following conditions, which are for the exclusive benefit of the Agents, and any of the following conditionsconditions may be waived, in whole or in part, by the Agents in their sole discretion pursuant to Section 15:
(a) The Agents shall have received at the Time of Closing, Closing a legal opinion dated the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Closing Date in form and substance and subject to deliver qualifications satisfactory to the Dealers Agents and their counsel, Torys LLPacting reasonably, a favourable legal opinion addressed to the Agents and their counsel from the Corporation’s counsel with respect to all such those matters as the Dealers Agents may reasonably request, including, without limiting request relating to the generality distribution of the foregoing: Debentures, including without limitation to the existence effect that:
(i) the Corporation is a corporation duly incorporated and validly existing under the Laws of the Province of Ontario;
(ii) the Corporation has all requisite corporate power and capacity authority to carry on the Business conducted by it as described in the Prospectus, to own, lease and operate its property and assets, to sign and file each of the Corporation; Offering Documents and to carry out the creationtransactions contemplated by the Prospectus;
(iii) each Principal Subsidiary is an entity duly formed and validly existing under the Laws of the jurisdiction of its formation;
(iv) each of the Corporate Entities has all requisite corporate power and authority to carry on the Business conducted by it as described in the Prospectus and to own, authorization, lease and operate its property and assets;
(v) all necessary action has been taken by the directors of the Corporation for the Corporation to validly issue and sale of deliver the Notes; the authorization of the Trust Indenture; that Debentures;
(vi) the attributes of the Notes Debentures are consistent in all material respects with the description thereof their respective descriptions set forth in the Term Sheets; that Prospectus;
(vii) all necessary action has been taken by the form directors of global certificate the Corporation to authorize the execution and delivery by the Corporation of this Agreement, and all necessary action has been taken by the directors of the Corporation to authorize the execution and delivery by the Corporation of the Trust Indenture and the Series Supplement, and the performance of the Corporation’s obligations hereunder and thereunder, and this Agreement, the Trust Indenture, the Series Supplement and the certificates representing the Notes has Debentures have been approved duly executed and delivered by the Corporation and complies with the provisions constitute legal, valid and binding obligations of the Trust Indenture; that Corporation, enforceable against it in accordance with their terms subject to customary qualifications;
(viii) the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability execution and delivery of this Agreement, the Trust Indenture and the Notes; that Series Supplement, the execution fulfillment of the terms hereof and delivery thereof by the Corporation ofCorporation, and the performance by the Corporation of its obligations under this Agreement issuance and the Trust Indenture, including the issuance delivery of the NotesDebentures, do not and will not result in a breach of any or a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with:
(A) any of the terms, conditions or provisions of the constating documents articles or by-laws of the Corporation, or ; or
(B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application Laws of the Province of Ontario or the federal Laws of Canada applicable therein is necessary that are applicable to the Corporation;
(ix) the Prospectus in order to preserve or protect both the validity or enforceability English and French languages, and the execution and filing of the Trust Indenture; Prospectus, in both the English and that French languages, with the offeringSecurities Commissions have been duly approved and authorized by all necessary action on the part of the Corporation, and the Base Prospectus in both the English and French languages, has been duly executed by or on behalf of the Corporation;
(x) all Authorizations under applicable Securities Laws have been obtained, all necessary documents have been filed and all other legal requirements have been fulfilled to qualify the issuance, distribution and sale and delivery of the Notes Debentures to the public in each of the Qualifying Jurisdictions through dealers registered under the applicable Laws of each of the Qualifying Jurisdictions who have complied with the relevant provisions of such Securities Laws;
(xi) subject to the qualifications, assumptions, limitations and understandings set out therein, the statements as to matters of the federal Laws of Canada set out in the Prospectus under the heading “Certain Canadian Federal Income Tax Considerations” fairly describe the principal Canadian federal income tax considerations as at the date thereof generally applicable under the Tax Act to a prospective purchaser of Debentures pursuant to the Prospectus;
(xii) subject to the qualifications, assumptions, limitations and understandings set out in the Prospectus under the heading “Eligibility for Investment”, the Debentures will be qualified as investments under the Tax Act for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts under the Corporation Tax Act;
(xiii) Computershare Trust Company of Canada has been appointed as the trustee with respect to the Debentures under the Trust Indenture and Series Supplement; and
(xiv) all Laws of the Province of Québec relating to the use of the French language will have been complied with in connection with the Prospectus, and the sale of the Debentures to purchasers in the Offering JurisdictionsProvince of Québec if such purchasers receive copies of the French language version or French and English language versions of the Prospectus and forms of order and confirmation of sale in the French language only or in the French and English languages, provided that the English language version of the Prospectus and such forms of order and confirmation in accordance the English language may be delivered, without delivery of the French language versions thereof, if expressly requested by the purchaser in writing. In connection with this opinion, counsel to the terms and conditions of this Agreement, isCorporation may rely on, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be requireddeliver directly, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them the Agents’ counsel, as to matters governed by the laws form, substance and choice of jurisdictions other than Canada and the Provinces of Ontariocounsel, Québecacting reasonably, British Columbia and Alberta, where it deems such reliance proper (or alternatively make arrangements to have may arrange for the provision of such opinions of local counsel directly addressed to the Dealers), Agents and their counsel) and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer the auditors of the CorporationCorporate Entities, public and stock exchange officials, and, to the extent appropriate in the circumstances, as to matters of fact on certificates of the directors or officers of the Corporation or officers or directors of the Corporate Entities.
(b) at The Corporation shall cause each of its auditors to deliver to the Time of ClosingAgents a comfort letter, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersAgents and their counsel, with respect to such matters as the Dealers may reasonably require relating acting reasonably, addressed to the distribution directors of the Notes Corporation and the Agents, bringing forward to a date not more than one business day prior to the extent governed by Closing Date, the laws information contained in the comfort letter referred to in Section 4(c)(iv) of Alberta, Ontario or Québecthis Agreement.
(c) The Corporation shall deliver to the Agents, at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date Date, addressed to the Dealers and their counsel, Agents and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the Dealers, acting reasonablyCorporation, certifying for and on behalf of the Corporation (without Corporation, and not in their personal liability) capacity, after having made due inquiries, with respect to those matters as the Agents may reasonably request, including to the effect that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied;
(ii) subsequent to the respective dates as at which information is given in the Prospectus, there has not been any Material Adverse Change, or any development involving a prospective Material Adverse Change, other than as disclosed in the Offering Documents;
(iii) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement and arising by reason of the delivery of the Offering Documents, are true and correct in all material respects with the same force and effect as if made at and as of such time, after giving effect to the transactions contemplated by this Agreement and the Trust Indenture Prospectus; and
(iv) Decision Documents have been obtained in respect of the Base Prospectus and any Supplementary Material, if applicable, and all other necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the Laws of each of the Qualifying Jurisdictions to qualify the issuance and sale of the Debentures to the public in each of the Qualifying Jurisdictions by or through persons who are registered under applicable legislation and who have complied with the relevant provisions of such applicable legislation and no order, ruling or determination having the effect of restricting or ceasing the trading or suspending the sale of the Debentures has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge of those senior officers, are contemplated or threatened by any Securities Commission or other regulatory authority; and all of those matters will in fact be true and correct as at the Time of Closing.
(d) All actions required to be taken by or on behalf of the Corporation, including the passing of all requisite resolutions of the directors of the Corporation and all requisite filings with any Governmental Body or Securities Commission shall have occurred at or prior to the Time of Closing so as to (i) validly authorize the execution and filing of the Offering Documents and the performance of the obligations of the Corporation hereunder, and (ii) create and issue the Debentures.
(e) The Agents shall have received from the Corporation at the Time of Closing a copy of a final rating agency letter from each of (i) S&P, confirming a credit rating of “BBB” for the Debentures, and (ii) DBRS, confirming a rating of “BBB(high)” Under Review with Negative Implications for the Debentures.
(f) The Corporation shall have complied with all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Time of Closing;.
(iig) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or The Agents shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to received such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Servicecertificates, Inc. for the Notes shall be at least “Baa1” (stable)opinions, the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Serviceagreements, Inc.materials or documents, DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized Agents and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiariestheir counsel, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at Agents or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenturetheir counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. The Underwriters’ obligations of hereunder at the Dealers hereunder are Closing Time shall be subject to the satisfaction accuracy of the representations and warranties of the Corporation contained in this Agreement as of the date of this Agreement and as of the Closing Date, the performance by the Corporation of its obligations under this Agreement and the following conditions:
(a) at the Time of Closing, the Corporation will shall cause its counsel, BlakeFogler, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers Underwriters and their counsel, Torys LLP, a favourable legal opinion dated and delivered on the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, and subject to and containing standard assumptions and qualifications, with respect to all such matters as the Dealers may reasonably requestfollowing matters:
(i) the Corporation is a “reporting issuer”, includingor its equivalent, without limiting the generality in each of the foregoing: Qualifying Provinces and it is not listed as in default of any of the Securities laws in the Qualifying Provinces;
(ii) the Corporation is a corporation existing under the laws of Yukon Territory and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets;
(iii) the existence authorized and issued and outstanding share capital of the Corporation;
(iv) the Corporation has all necessary corporate power and capacity capacity: (A) to execute and deliver this Agreement, the Subscription Agreement, the Warrant Indenture and the Warrant Certificates and to perform its obligations hereunder and thereunder; (B) to create, issue and sell the Units and Flow-Through Shares; (C) to issue the Warrant Shares issuable upon exercise of the Warrants in accordance with their terms; (D) to issue the Compensation Shares upon the exercise of the Compensation Options; and (E) to issue the Compensation Warrant Shares upon the issue of the Compensation Warrants;
(v) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators;
(vi) upon the payment therefor, the Unit Shares and Flow-Through Shares will have been validly issued as fully paid and non-assessable shares in the capital of the Corporation; ;
(vii) the creation, authorization, issue and sale Warrants have been validly created;
(viii) the Warrant Shares issuable upon exercise of the Notes; Warrants have been authorized and allotted for issuance and, upon the authorization exercise of the Trust Indenture; that Warrants in accordance with the attributes provisions thereof, such Warrant Shares will be validly issued as fully paid and non-assessable shares of the Notes Corporation;
(ix) the Compensation Options have been validly created;
(x) the Compensation Shares issuable upon exercise of the Compensation Options have been authorized and allotted for issuance and, upon the exercise of the Compensation Options in accordance with the provisions thereof, such Compensation Shares will be validly issued as fully paid and non-assessable shares of the Corporation;
(xi) the Compensation Warrant Shares issuable upon exercise of the Compensation Warrants have been authorized and allotted for issuance and, upon the exercise of the Compensation Warrants in accordance with the provisions thereof, such Compensation Warrant Shares will be validly issued as fully paid and non-assessable shares of the Corporation;
(xii) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Subscription Agreement, the Warrant Indenture, the Warrant Certificates, the Compensation Option Certificates and the Compensation Warrant Certificates and the performance of its obligations hereunder and thereunder and this Agreement, the Warrant Indenture, the Warrant Certificates and the Compensation Option Certificates have been executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution may be limited by applicable law;
(xiii) the rights, privileges, restrictions and conditions attaching to the Unit Shares, the Flow-Through Shares, the Warrants, the Warrant Shares, the Compensation Options, the Compensation Shares, the Compensation Warrants and the Compensation Warrant Shares are consistent accurately summarized in all material respects in the Final Prospectus;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Provinces have been obtained by the Corporation to qualify the distribution to the public of the Unit Shares, Flow-Through Shares and the Warrants and the distribution to the Underwriters of the Compensation Options in each of the Qualifying Provinces through persons who are registered under applicable Securities Laws and who have complied with the relevant provisions of applicable Securities Laws;
(xv) the issue by the Corporation of the Warrant Shares to be issued upon due exercise of the Warrants pursuant to the terms thereof is exempt from, or is not subject to, the prospectus and registration requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained by the Corporation under Securities Laws in any of the Qualifying Provinces in respect of such distribution;
(xvi) the issue by the Corporation of the Compensation Shares to be issued upon due exercise of the Compensation Options pursuant to the terms thereof is exempt from, or is not subject to, the prospectus and registration requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained by the Corporation under Securities Laws in any of the Qualifying Provinces in respect of such distribution;
(xvii) the issue by the Corporation of the Compensation Warrant Shares to be issued upon due exercise of the Compensation Warrants pursuant to the terms thereof is exempt from, or is not subject to, the prospectus and registration requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained by the Corporation under Securities Laws in any of the Qualifying Provinces in respect of such distribution;
(xviii) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Securities Laws in any of the Qualifying Provinces in respect of such trade, subject to the exceptions generally provided for in such opinions;
(xix) the first trade in, or resale of, the Compensation Shares issuable upon exercise of the Compensation Options is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Securities Laws in any of the Qualifying Provinces in respect of such trade, subject to the exceptions generally provided for in such opinions;
(xx) the first trade in, or resale of, the Compensation Warrant Shares issuable upon exercise of the Compensation Warrants is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of each of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Securities Laws in any of the Qualifying Provinces in respect of such trade, subject to the exceptions generally provided for in such opinions;
(xxi) subject only to the Standard Listing Conditions, the Unit Shares, Flow-Through Shares, the Warrant Shares, the Compensation Shares and the Compensation Warrant Shares have been conditionally approved for listing on the Stock Exchanges;
(xxii) subject only to the Standard Listing Conditions, the Warrants have been conditionally approved for listing on the TSX;
(xxiii) the form and terms of the definitive certificates representing the Common Shares have been approved by the board of directors of the Corporation and comply in all material respects with the description thereof in Business Corporations Act, (Yukon) and the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation rules and complies with the provisions by-laws of the Trust Indenture; that Stock Exchanges;
(xxiv) the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability execution and delivery of this Agreement, the Trust Indenture Subscription Agreement, the Warrant Indenture, the Warrant Certificates, the Compensation Option Certificates and the Notes; that Compensation Warrant Certificates, the execution fulfilment of the terms hereof and delivery thereof by the Corporation of, and the performance issuance, sale and delivery of the Offered Securities to be issued and sold by the Corporation of its obligations under this Agreement at the Closing Time and the Trust Indenture, including the issuance of the NotesUnit Shares, the Flow-Through Shares, the Warrants and the Warrant Shares do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of any of of, and do not and will not conflict with: (A) the provisions of the Business Corporations Act, Yukon or Yukon securities law; or (B) the constating documents of the Corporation, or ;
(Bxxv) any law of general application applicable CIBC Mellon Trust Company has been duly appointed as the transfer agent and registrar for the Common Shares;
(xxvi) the Warrant Agent has been duly appointed as warrant agent under the Warrant Indenture;
(xxvii) the text the Final Prospectus under the headings “Canadian Federal Income Tax Considerations” and “Eligibility for Investment” in the Offering Jurisdictions; Final Prospectus construes an accurate statement of law subject to the Trust Indenture complies with assumptions and other qualifications referred to therein;
(xxviii) the provisions Flow-Through Shares are “flow-through shares” as defined in subsection 66(15) of the CBCA and Tax Act; and
(xxix) the Business Corporations Act (Ontario); Flow-Through Shares do not constitute “prescribed shares” for the issuance purpose of regulation 6202.1 of the Notes under Regulations to the Trust Indenture complies Tax Act. In connection with the provisions of the CBCA; the reporting issuer status of such opinion, counsel to the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel in the Qualifying Provinces acceptable to them counsel to the Underwriters, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Unit Shares, the Flow-Through Shares, the Warrants and the Compensation Options or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements province in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practise and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers of the Corporation.Corporation and others;
(b) at for purposes of Schedule “A”, if any Units are sold by an Underwriter or any affiliate of the Time of ClosingUnderwriters or Selling Firm in transactions requiring an exemption from the registration requirements under the U.S. Securities Act, the Dealers Corporation shall cause a favourable legal opinion to be delivered by its United States counsel, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, to the Underwriters, such opinion to be subject to such qualifications and assumptions as the Underwriters may agree, acting reasonably, to the effect that no registration of the Unit Shares and Warrants will be required under the U.S. Securities Act in connection with the offer and sale of the Units in the United States or to U.S. Persons, provided, that the sale of the Units in the United States and to U.S. Persons is made in accordance with Schedule “A” hereto, it being understood that such counsel need not express its opinion with respect to any subsequent resales of the Unit Shares or Warrants comprising the Units or the Warrant Shares and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(c) the Underwriters shall have received from their counsel, Torys LLP, a favourable legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from local counsel to the Corporation with respect to title to the Black Fox Property, Pike River Property and Grey Fox Property;
(d) the Underwriters shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Underwriters may agree, certifying for and on behalf of the Corporation, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the articles and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Securities to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(e) the Corporation shall cause the Corporation’s Auditors to deliver to the Underwriters a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, bringing forward to such matters as the Dealers may reasonably require relating a date not more than two Business Days prior to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed the information contained in the comfort letter referred to in paragraph 5(a)(iii) hereof;
(f) the Dealers and their counselUnderwriters shall have received a certificate, and dated as of the Closing Date, signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Corporation, or such other officers of the Corporation as the Underwriters may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (and without personal liability) , to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of at the Time of Closing Time, with the same force and effect as if made on and as at the Closing Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) receipts or decision documents have been issued by the Canadian Securities Regulators for the Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened under any Securities Laws or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation which is material to the Corporation, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials (Supplementary Material, as they existed at the respective dates thereof);case may be; and
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that there has not since been corrected;
(vi) the Acquisition has not been terminated or amended no change in any material respect, no fact (which includes the disclosure of any previously undisclosed material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated fact) contained in the 2.7 AnnouncementFinal Prospectus which fact or change is, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respectmay be, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) such a nature as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.render any state
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Underwriters to purchase the satisfaction Offered Shares under this Agreement, which conditions the Company covenants to use its reasonable best efforts to fulfill within the times set out herein, and which conditions may be waived in writing in whole or in part by the Underwriters:
7.1 receipt by the Underwriters of the following conditionsdocuments:
(a) at 7.1.1 a favourable legal opinion, dated the Time of Closing, the Corporation will cause its counsel, Blake, ▇Closing Date from Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver as U.S. counsel to the Dealers Company, addressed to the Underwriters, in form and their counselsubstance reasonably satisfactory to the Co-Lead Underwriters, Torys LLPsubstantially in the form mutually agreed, it being understood that such counsel may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of public and stock exchange officials and certificates of the directors or officers of the Company;
7.1.2 a favourable legal opinion, dated the Closing Date from Goodmans LLP, as Canadian counsel to the Company, addressed to the Underwriters and dated such delivery date, in form and substance reasonably satisfactory to the Co-Lead Underwriters, substantially in the form mutually agreed, it being understood that such counsel may rely on the opinions of local counsel acceptable to them (or may arrange for the provision of such opinions directly to the Underwriters) as to matters governed by the laws of jurisdictions other than the Province of Ontario and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of public and stock exchange officials and certificates of the directors or officers of the Company;
7.1.3 a disclosure letter dated the Closing Date from Shearman & Sterling LLP, as U.S. counsel for the Underwriters, with respect to the Company’s disclosure in the documents filed with the SEC in connection with the distribution of the Offered Shares, it being understood that such counsel may rely as to matters of fact on certificates of the Company’s officers and on the opinion of the Company’s counsel as to matters which specifically relate to the Company or any of its affiliates;
7.1.4 a favourable legal opinion, dated the Closing Date from Stikeman Elliott LLP, as Canadian counsel for the Underwriters, such opinion with respect to all such matters as the Dealers Underwriters may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation ofrequire, and the performance by Company shall have furnished to such counsel such documents and information as such counsel reasonably requests for the Corporation purpose of its obligations under this Agreement and enabling them to pass upon such matters;
7.1.5 a disclosure letter dated the Trust Indenture, including Closing Date from Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP with respect to the issuance Company’s disclosure in the documents filed with the SEC in connection with the distribution of the NotesOffered Shares, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is it being understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontariotheir respective jurisdictions, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers)as applicable, and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer the Company’s officers; and the Underwriters’ counsel may rely on the opinion of the Corporation.Company’s counsel as to matters which specifically relate to the Company or any of its affiliates;
(b) at the Time of Closing7.1.6 a certificate, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution date of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, delivery and signed by any of the president and chief executive officer and or the chief financial officer of the Corporation Company, or such other officers officer of the Corporation Company as may be acceptable to the DealersCo-Lead Underwriters, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) 7.1.6.1 the Corporation Company has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied by the Company at or prior to the Time of ClosingClosing Time;
(ii) 7.1.6.2 the representations and warranties of the Corporation Company contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlyTime;
(iii) 7.1.6.3 no order, ruling or determination having the effect of ceasing the trading or suspending trading in the sale of the Notes Common Shares has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge knowledge, information and belief of the person signing such officerscertificate, are contemplated or threatened;
7.1.6.4 the Registration Statement has become effective under the Securities Act and no stop order or other order (A) suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, (B) suspending any Issuer Free Writing Prospectus, (C) suspending the U.S. Base Prospectus, (D) suspending the Canadian Prospectus or the U.S. Prospectus, has been issued, and no investigation, order, inquiry or proceeding for that purpose has been instituted, pending or, to their knowledge, is contemplated or threatened by the SEC or any state or regulatory body; and the SEC shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
7.1.6.5 that the person signing such certificate has examined the Registration Statement, the U.S. Prospectus, the Canadian Prospectus and the Pricing Disclosure Package, and in their opinion, (A) (i) the Registration Statement, as of the Effective Date, (ii) the U.S. Prospectus, as of its date and on the applicable Delivery Date, (iii) the Canadian Prospectus, as of its date and on the applicable Delivery Date, and (iv) since the respective dates Pricing Disclosure Package, as of the Disclosure MaterialsApplicable Time, there has been no did not and do not contain any untrue statement of a material adverse change, financial fact and did not and do not omit to state a material fact required to be stated therein or otherwisenecessary to make the statements therein (except in the case of the Registration Statement, in the businesslight of the circumstances under which they were made) not misleading, affairsand (B) since the Effective Date, operationsno event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, assetsthe U.S. Prospectus, liabilities (contingent the Canadian Prospectus or otherwiseany Issuer Free Writing Prospectus that has not been so set forth;
7.1.6.6 all filings required to have been made pursuant to Rules 424(b), capital 430A, 430B or prospects 430C under the Securities Act and pursuant to applicable Canadian Securities Laws have been made as and when required by such rules and laws; and
7.1.6.7 to the effect of Section 7.1.7 (provided that no representation with respect to the judgment of the Corporation Co-Lead Underwriters need be made) and Section 7.1.8, and certifying to such other matters of a factual nature as the Co-Lead Underwriters and the Underwriters’ counsel may reasonably request.
7.1.7 except as described in the U.S. Base Prospectus and the Canadian Prospectus, (i) neither the Company nor any of its Subsidiaries subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the U.S. Base Prospectus and Canadian Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (taken as a whole)ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), in the business affairs, results of operations, assetsstockholders’ equity, liabilities (contingent properties, management, business or otherwise) or capital prospects of the Corporation Company and its Subsidiaries (subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), from that disclosed is, individually or in the Corporation’s Information Record aggregate, in the reasonable opinion of the Co-Lead Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none delivery of the documents filed with Canadian Securities Regulators forming Offered Shares being delivered on such Delivery Date on the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially terms and in all material respects as the manner contemplated in the 2.7 AnnouncementU.S. Prospectus;
7.1.8 subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the Exchange Act), and the Corporation has (ii) no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Notes; andCompany’s debt securities;
7.1.9 the Lock-Up Agreements between the Co-Lead Underwriters and the officers and directors of the Company set forth on Schedule “C”, delivered to the Co-Lead Underwriters on or before the date of this Agreement, shall be in full force and effect on such Delivery Date;
7.1.10 the comfort letters required to be delivered at the Execution Time, the Closing Time and the Option Closing Time, respectively, pursuant to Section 4.3;
7.1.11 evidence satisfactory to the Co-Lead Underwriters that the Company has authorized and approved this Agreement, the issuance and sale of the Offered Shares and all matters relating thereto;
7.1.12 in book-entry form or one or more definitive certificates (xor evidence of issuance in book-entry form or its equivalent in the non-certificated inventory system at the Company’s registrar and transfer agent) representing a document constituting the Offered Shares registered in the name of the CDS & Co. or The Depository Trust Company, as to applicable, or in such other matters of a factual nature name or names as the Dealers and the Dealers’ counsel Co-Lead Underwriters may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Servicedirect, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver against payment to the Dealers letters from ▇▇▇▇▇’▇ Investors ServiceCompany, Inc.or as the Company may direct, DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and aggregate purchase price of the Trust Company Offered Shares, less an amount equal to the full amount of the applicable Underwriting Fee, by wire transfer payable in Toronto, all in form and substance satisfactory to the Dealers, Co-Lead Underwriters acting reasonably;
(f) 7.1.13 the Canadian Prospectus, the Prospectus Supplements and any Amendments shall have been filed with the applicable securities regulatory authority in each of the Qualifying Jurisdictions in accordance with Securities Laws;
7.1.14 the U.S. Prospectus shall have been timely filed with the Commission in accordance with Section 3.10. The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the U.S. Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with;
7.1.15 evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance Co-Lead Underwriters of the Notes approval of the listing and posting for trading on the Stock Exchanges of the Offered Shares, subject only to the satisfaction by the Company of certain standard listing conditions;
7.1.16 the representations and warranties of the Company contained herein being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
7.1.17 the Company having complied with all matters relating thereto; and
(g) covenants and satisfied all actions required terms and conditions to be taken complied with and satisfied by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred it at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this AgreementTime; and
(ii) create7.1.18 the Underwriters not having previously terminated their obligations pursuant to Section 11 of this Agreement.
7.2 It shall be a condition precedent to the Company’s obligations to issue the Offered Shares that:
7.2.1 the Underwriters shall have delivered or caused to be delivered to the Company a wire transfer representing the aggregate purchase price payable by the Underwriters for the Offered Shares, issue and sell less an amount equal to the Notes in accordance full amount of the applicable Underwriting Fee;
7.2.2 the Underwriters shall have complied with the provisions covenants and satisfied all terms and conditions to be complied with and satisfied by it at or prior to the Closing Time (which condition may be waived in writing, in whole or in part, by the Company); and
7.2.3 no order shall have been made by any securities regulatory authority in any Qualifying Jurisdiction which restricts in any manner the distribution of this Agreement the Offered Shares.
7.3 The Company shall make all necessary arrangements for the exchange of the Offered Shares delivered pursuant to Section 7.1 hereof, on the date of delivery, at the principal office in Toronto, Ontario of the duly appointed registrar and transfer agent for the Trust IndentureOffered Shares, or its agent, for definitive certificates representing or documents constituting the Offered Shares in such amounts and registered in such names as shall be designated in writing by any Selling Firm not less than 24 hours prior to the Closing Time. All such exchanges are to be made without cost to the Selling Firms, other than any applicable transfer taxes.
7.4 On or prior to each Delivery Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Co-Lead Underwriters may reasonably request.
7.5 The documents delivered to the Underwriters pursuant to Sections 7.1.1, 7.1.2, 7.1.3, 7.1.4, 7.1.5, 7.1.6, and 7.1.10 shall also be addressed to the U.S. affiliates of the Underwriters, as applicable, or such documents shall explicitly allow the U.S. affiliates of the Underwriters to rely upon such documents.
Appears in 1 contract
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Purchased Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction following conditions having been met at the Closing Time:
(1) the Underwriters receiving favourable legal opinions from Stikeman Elliott LLP, counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, on the opinions of local counsel acceptable to counsel to the Underwriters as to the qualification of the following conditionsOffered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or transfer agent of the Corporation), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) at the Time Corporation is a corporation validly incorporated and existing under the Business Corporations Act (Ontario) and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) the Corporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement, (ii) to create, issue and sell the Offered Shares, and (iii) to grant the Over-Allotment Option;
(c) the authorized and issued capital of Closingthe Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(e) the execution and delivery of this Agreement and the fulfilment of the terms of this Agreement by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Shares in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(i) subject to the qualifications and assumptions set out therein, the Corporation will cause its statements set forth in the Preliminary Prospectus and the Final Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(j) subject only to the standard listing conditions, the Offered Shares have been conditionally listed or approved for listing on the TSX; and
(k) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, Blakeacting reasonably.
(2) the Underwriters receiving favourable legal opinions from counsel to the Subsidiary in form and substance acceptable to the Underwriters and their counsel, ▇acting reasonably, substantially to the effect set out below:
(a) the Subsidiary having been incorporated and existing under the Business Corporations Act (Ontario);
(b) the Subsidiary having the corporate capacity and power to own and lease its properties and assets and to conduct its business as described in the Prospectus; and
(c) as to the authorized and issued share capital of the Subsidiary and to the ownership thereof;
(3) if the Offered Shares are sold in the United States, the Underwriters receiving a favourable legal opinion dated the Closing Date from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver addressed to the Dealers and their counselUnderwriters, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of effect that no registration is required under the Corporation; the creationU.S. Securities Act, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects connection with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuanceoffer, sale and delivery of the Notes by Offered Shares to, or for the Corporation to purchasers account or benefit of, persons in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.United States;
(b4) at the Time of Closing, the Dealers will have Underwriters having received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiary, each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken B) no transaction has been entered into by the Corporation or the Subsidiary which is material to the Corporation on a consolidated basis, other than as a whole), from that disclosed in the Corporation’s Information Record Final Prospectus or the Disclosure Materials Supplementary Material, as the case may be; and
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as they existed at to render any statement in the respective dates thereof)Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws;
(v) none 8) the Underwriters receiving the executed lock-up agreements from each director and executive officer of the documents filed with Canadian Securities Regulators forming Corporation (other than as contemplated by Section 8(3)) in favour of the Corporation’s Information Record contained Underwriters in a misrepresentation form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(9) the Underwriters receiving a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the time end of business day on the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or date prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Closing Date;
(vii10) no order, ruling or determination having the Acquisition has not lapsed effect of ceasing or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended suspending trading in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating prohibiting the sale of the Notes; and
(x) as Offered Shares or any of the Corporation’s issued securities being issued and no proceeding for such purpose being pending or, to such other matters the knowledge of a factual nature as the Dealers and Corporation, threatened by any securities regulatory authority or the Dealers’ counsel may reasonably request; and such statements shall be true in factTSX;
(d11) the credit rating issued Corporation having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX, subject only to satisfaction by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratingsof standard listing conditions;
(e12) the Supplemental Indentures shall have been executed Corporation complying with all of its covenants and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i13) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Aphria Inc.)
Conditions of Closing. The obligations In connection with the execution and delivery of the Dealers hereunder are subject this Amendment, Borrowers shall be obligated to the satisfaction of satisfy (to Administrative Agent’s satisfaction), in full, the following conditions, at the expense of the Borrowers:
A. The Borrowers shall have executed and delivered to Administrative Agent modifications to each of the mortgages given to Lender in connection with the making of the Original Loan and the Omnibus Agreement, evidencing the amendments, modifications and supplements to the Loan Documents provided for herein, each of which shall be in form and substance acceptable to Administrative Agent, and the same shall have been delivered for recording in the Official Records of the applicable counties in which the subject Projects are located;
B. The Borrowers shall have executed and delivered to Administrative Agent such amendments, modifications and supplements to the Loan Documents as Administrative Agent may require;
C. Administrative Agent shall have obtained from the applicable title companies such irrevocable commitments to issue to Administrative Agent such date down endorsements to the Title Policy as Administrative Agent may require, insuring that the mortgages referred to above have been successfully modified and that they continue to be an enforceable first-priority or second priority lien, as the case may be, against the Projects securing the Loan (a) at as amended, modified and supplemented herein), subject only to the Time Permitted Encumbrances;
D. After the execution and delivery hereof, and in accordance with that certain post-closing letter entered into this day among Administrative Agent, Borrowers and affiliates of ClosingBorrowers (the “Post-Closing Letter”), Administrative Agent shall have received such opinions as Administrative Agent may require from its local counsel or the Borrowers’ counsel, concerning the execution, delivery and enforceability of this Amendment and any other amendments, modifications and supplements to the Loan Documents entered into in connection herewith, and such other matters as Administrative Agent may require; and
E. As provided in the Post-Closing Letter, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to Borrowers shall have paid or reimbursed Administrative Agent for all costs and expenses incurred by Administrative Agent in connection with the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably requestDefault, including, without limiting limitation, any actions taken by Administrative Agent or the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent Lenders in all material respects connection with the description thereof in Default, the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation preparation, negotiation, and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability execution of this Agreement, the Trust Indenture Amendment and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations including the fees and warranties which are made as disbursements of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the CorporationAdministrative Agent’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation escrow, recording and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation title insurance and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indentureendorsement charges.
Appears in 1 contract
Sources: Loan Agreement (Tarragon Corp)
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder Agents to complete the Closing and to arrange for the purchase of the Offered Shares at the Closing Time, and which conditions are subject to be satisfied by the Company at or prior to the satisfaction of Closing Time and may be waived in writing in whole or in part by the following conditionsAgents:
(a) The Agents shall have received at the Closing Time of Closinga legal opinion dated the Closing Date, in form and substance satisfactory to the Corporation will cause its counselAgents, acting reasonably, addressed to the Agents from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver Canadian counsel to the Dealers Company, as to the laws of Canada and their counselthe Qualifying Jurisdictions, Torys LLPwhich counsel in turn may rely upon the opinions of local counsel where it deems such reliance proper or alternatively, a favourable legal opinion make arrangements to have such opinions directly addressed to the Agents, and all of such counsel may rely upon, as to matters of fact, certificates of public officials and officers of the Company, and letters from stock exchange representatives and transfer agents, with respect to all such matters the following matters:
(i) as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and good standing of New Found Gold Corp. under the Business Corporations Act (British Columbia);
(ii) that New Found Gold Corp. has all requisite corporate power power, capacity and capacity authority under the laws of its jurisdiction of incorporation or formation to carry on its businesses as presently carried on and to own its property and assets as described in the Final Prospectus;
(iii) the authorized and issued and outstanding share capital of the Corporation; the creation, Company;
(iv) that no authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof consent or approval of, or filing, registration, permit, license, decree, qualification or recording with, any Governmental Authority in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and Qualifying Jurisdictions is required for the performance by the Corporation Company of its obligations under this Agreement, the delivery to the Agents of the Offered Shares and, if applicable, the Additional Shares hereunder, the consummation of the transactions contemplated by this Agreement (including, without limitation, the distribution of the Securities in the manner contemplated herein), other than those that have been obtained or made prior to the Closing Time;
(v) that all necessary corporate action has been taken by the Company to authorize (i) the execution and delivery of this Agreement and the Trust Indentureperformance of its obligations hereunder, and (ii) the delivery and, if applicable, the execution and filing of, the Preliminary Prospectus, the Final Prospectus, and, if applicable, any Prospectus Amendment, under the Canadian Securities Laws in each of the Qualifying Jurisdictions;
(vi) this Agreement has been duly 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 bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the issuance qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by Applicable Law;
(vii) the execution and delivery of this Agreement and the fulfilment of the Notesterms hereof by the Company and the issuance, sale and delivery of the Offered Shares to be issued and sold by the Company at the Closing Time and the grant of the Over-Allotment Option do not and will not result in a breach of any or a default under, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with: (A) the provisions of the constating documents of the Corporation, or Company; (B) any resolutions of the shareholders or directors (including of any committee thereof) of the Company; or (C) any applicable corporate law or Securities Laws;
(viii) the Offered Shares have been duly and validly issued as fully paid and non-assessable shares in the capital of general application applicable the Company;
(ix) that the statements under the heading “Eligibility for Investment” in the Preliminary Prospectus, and the Final Prospectus are accurate, subject to the assumptions, qualifications, limitations and restrictions set out therein;
(x) the rights, privileges, restrictions and conditions attaching to the Securities and the Over-Allotment Option are accurately summarized in all material respects in the Offering Jurisdictions; Documents;
(xi) the Trust Indenture complies Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not on the list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(xii) that all necessary documents have been filed, all requisite proceedings have been taken, all legal requirements have been fulfilled and all necessary approvals, permits, consents and authorizations of the Canadian Securities Regulators have been obtained, in each case by the Company to qualify the Securities for distribution and sale to the public in each of the Qualifying Jurisdictions through investment dealers or brokers registered in such categories under the applicable laws of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable laws; and
(xiii) that the CBCA and the Business Corporations Act (Ontario); the issuance common shares of the Notes under the Trust Indenture complies with the provisions Company (including all of the CBCA; Securities) have been approved for listing and posting for trading on the reporting issuer status TSX-V, subject only to customary listing conditions set forth in the conditional approval letter of the Corporation under applicable Canadian Securities Laws; that no authorizationTSX-V dated July 24, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation2020.
(b) The Agents receiving, at the Closing Time, favourable legal opinions (in customary form) dated as of the Closing Date from counsel to the Company as to title matters in respect of the Queensway Gold Project, in form and substance acceptable to the Agents, acting reasonably.
(c) The Agents receiving, at the Closing Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance acceptable to the Agents, acting reasonably, addressed to the Agents (and if required for opinion purposes, counsel to the Agents) from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Company, and such counsel may rely upon, as to matters of fact, certificates of public officials and officers of the Company, and letters from stock exchange representatives and transfer agents, that no registration under the 1933 Act is required for the sale of Shares through the U.S. Affiliates in the United States in the manner contemplated by this Agreement;
(d) The Agents shall have received from DNTW Toronto LLP at the Closing Time a “bring-down” comfort letter dated the Closing Date, in form and substance satisfactory to the DealersAgents, with respect to such matters as the Dealers may reasonably require relating acting reasonably, addressed to the distribution Agents and the directors of the Notes Company, confirming the continued accuracy of the comfort letter to be addressed to the extent governed by Agents, and the laws directors of Albertathe Company pursuant to Section 7(a)(iv) with such changes as may be necessary to bring the information in such letter forward to a date not more than two Business Days prior to the Closing Date, Ontario or Québecprovided such changes are acceptable to the Agents, acting reasonably.
(ce) The Agents shall have received at the Closing Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date Date, addressed to the Dealers and their counsel, and Agents signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable Company in form and substance satisfactory to the DealersAgents, acting reasonably, with respect to the notice of articles, articles and other constating documents of the Company, all resolutions of the board of directors of the Company relating to this Agreement and the incumbency and specimen signatures of signing officers of the Company.
(f) The Agents shall have received at the Closing Time a certificate dated the Closing Date, addressed to the Agents and signed on behalf of the Company by the Chief Executive Officer and the Chief Financial Officer of the Company or other senior officers of the Company acceptable to the Agents certifying for and on behalf of the Corporation (Company and without personal liability) liability after having made due enquiry and after having examined the Final Prospectus, the U.S. Offering Memorandum and any Offering Document Amendment, that:
(i) since the Corporation date as of which information is given in the Final Prospectus there has complied with all been no Material Adverse Change and that no material transaction has been entered into by the covenants and satisfied all Company other than as disclosed in the terms and conditions of this Agreement and Final Prospectus, the Trust Indenture on its part to be complied with and satisfied at U.S. Offering Memorandum or prior to the Time of Closingany Offering Document Amendment;
(ii) the representations Final Prospectus and warranties U.S. Offering Memorandum (except any Agents’ Information) (i) do not contain a misrepresentation and contain full, true and plain disclosure of all material facts relating to the Securities and the Company, and (ii) do not contain an untrue statement of a material fact or omit to state a material fact that is required to be stated or that is necessary in order to make the statements therein, in the light of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated herebycircumstances under which they were made, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date onlynot misleading;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes Securities or any other securities of the Company has been issued by any Governmental Authority and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any Governmental Authority;
(iv) since the respective dates Company has complied in all material respects with the terms and conditions of this Agreement on its part to be complied with at or prior to the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);Closing Time; and
(v) none the representations and warranties of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record Company contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in this Agreement and in any material respect, no material provision has been waived certificates or other documents delivered by the Corporation Company pursuant to or in connection with this Agreement are true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and correct in all material respects as contemplated in of the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance Closing Time with the 2.7 Announcement on or prior same force and effect as if made at and as of the Closing Time after giving effect to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended transactions contemplated by this Agreement, except in respect of any material respectrepresentations and warranties that are to be true and correct as of a specified date, no material provision has been waived by the Corporation in which case they will be true and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and correct in all material respects as contemplated of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects; and all of those matters will in fact be true and correct as at the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed Closing Time.
(g) The Company shall have complied in accordance all material respects with the terms and conditions of this Agreement on its part to be complied with at or prior to the Closing Time.
(h) The Company will have made and/or obtained all necessary filings, approvals, permits, consents and acceptances to or from, as the case may be, the board of directors, the Canadian Securities Regulators, the TSX-V, and any other applicable person required to be made or obtained by the Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Company and the Agents, acting reasonably, prior to the Closing Date, it being understood that the Agents will do all that is reasonably required to assist the Company to fulfil this condition.
(i) The representations and warranties of the Separation Company contained in this Agreement and in any certificates or other documents delivered by the Company pursuant to or in connection with this Agreement shall be true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement;, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they will be true and correct in all material respects as of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects.
(ixj) there has not been any adverse change Subject to the last sentence of this paragraph, each of the persons identified in Schedule C, such persons being shareholders of the Company holding at least 5% of the common shares of the Company at Closing, and each of the Company’s senior officers and directors, will have executed a lock-up agreement in the assigned ratings on form set forth in Schedule D and the Notes Agents will have received a copy thereof. The Agents acknowledge that the Company will use commercially reasonable efforts to obtain lock-up agreements from certain shareholders controlled by DBRS Limited, or affiliated with ▇▇▇▇ ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇ ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;.
(ek) The common shares of the Supplemental Indentures Company (including all of the Securities) shall have been executed approved for listing and delivered posting for trading on the TSX-V on or before the Business Day immediately preceding the Closing Date, subject only to the satisfaction by each the Company of customary post-closing conditions imposed by the TSX-V in similar circumstances.
(l) The Agents will have received a certificate from Computershare Investor Services Inc. with respect to its appointment as transfer agent and registrar of the Corporation common shares of the Company and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board number of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance common shares of the Notes Company issued and all matters relating thereto; and
(g) all actions required to be taken by or on behalf outstanding as at the end of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or Business Day immediately prior to the Time of Closing so as to:Date.
(im) execute and deliver this Agreement and all other documents contemplated under this Agreement; andThe Agents will have received a certificate of compliance or the equivalent in respect of the Company issued by the appropriate regulatory authorities in British Columbia dated within one Business Day prior to the Closing Date.
(iin) createThe Agents shall have received the Agents’ Commission.
(o) The Agents shall have received such other closing certificates, issue and sell opinions, receipts, agreements or documents as the Notes in accordance with the provisions of this Agreement and the Trust IndentureAgents or their counsel may reasonably request.
Appears in 1 contract
Conditions of Closing. The obligations obligation of the Dealers hereunder are Underwriters under this Agreement to purchase the Offered Securities at the Closing Time and at any Option Closing Time shall be subject to the satisfaction of each of the following conditions:conditions (it being understood that the Underwriters may waive in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to their rights in respect of any other of the following terms and conditions or any other or subsequent breach or non-compliance of the Corporation, provided that to be binding on the Underwriters any such waiver or extension must be in writing and signed by each of them):
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, Underwriters receiving favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers Corporation (who may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on provide the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation existing under the CBCA and has not been dissolved under the CBCA;
(b) at the Time Corporation has the corporate power and corporate capacity under the CBCA and the constating documents of Closingthe Corporation to (i) carry on its Business and activities and to own, lease and operate its properties and Business Assets, as described in the Prospectus, (ii) execute and deliver this Agreement, the Dealers Offering Documents and the Broker Warrant Certificates, as applicable, and perform its obligations thereunder, (iii) create, offer, issue and sell the Offered Securities, (iv) create, offer, issue and deliver the Broker Warrants, and (v) grant the Over-Allotment Option to the Underwriters;
(c) as to the authorized share capital of the Corporation and that the Prospectus describes, in all material respects, the attributes of the Common Shares and preferred shares of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the Broker Warrant Certificates, and the performance by the Corporation of its obligations under this Agreement and the Broker Warrant Certificates, and this Agreement and the Broker Warrant Certificates have been duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation, enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by Applicable Laws;
(e) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Preliminary Prospectus, the Final Prospectus, the U.S. Memorandum and any Supplementary Material and the filing of such documents, as applicable, under Canadian Securities Laws;
(f) the execution and delivery of this Agreement and the Broker Warrant Certificates and the performance by the Corporation of its obligations thereunder, including the issuance, sale and delivery of the Offered Securities, the issuance and delivery of the Broker Warrants and the grant of the Over-Allotment Option in accordance with this Agreement and the Broker Warrant Certificates, do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under (i) constating documents of the Corporation, (ii) resolutions of the directors or shareholders of the Corporation, or (iii) the CBCA;
(g) the Initial Shares have received been validly issued as fully paid and non-assessable Common Shares;
(h) the Broker Warrants have been validly created and issued as warrants of the Corporation;
(i) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Corporation and, upon the exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares will be duly and validly created, authorized, issued and outstanding and the Over-Allotment Shares will be fully paid and non-assessable shares;
(j) the Broker Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Broker Warrants, in accordance with the terms of the Broker Warrant Certificates, the Broker Warrant Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under Applicable Securities Laws in order to qualify the distribution of the Offered Securities and the Broker Warrant Shares in the Qualifying Jurisdictions by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(l) the issuance of the Broker Warrant Shares issuable upon exercise of the Broker Warrants will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(m) the Corporation is a “reporting issuer” under Canadian Securities Laws in each of the Qualifying Jurisdictions and it is not listed as in default of applicable Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(n) the Offered Securities and the Broker Warrant Shares have been approved for listing on the Exchange, subject to the Corporation fulfilling all of the requirements of the Exchange, including those set forth in any conditional approval letter of the Exchange;
(o) Computershare Investor Services Inc. has been duly appointed as registrar and transfer agent of the Common Shares;
(p) subject to the limitations, qualifications and assumptions set out therein, the statements set forth in the Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(q) the attributes of the Offered Securities and the Broker Warrants conform in all material respects with the description thereof contained in the Final Prospectus; and
(r) the form of Broker Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation, in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably;
(2) the Underwriters receiving legal opinions from counsel to each Subsidiary (who may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials related to each Subsidiary), in form and substance acceptable to the Underwriters and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) such Subsidiaries having been incorporated and existing under the Applicable Laws of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and Business Assets and to conduct their Business as currently being conducted;
(c) as to the authorized and issued share capital of such Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and having all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective Business as currently conducted;
(3) if any of the Offered Securities are offered or sold in the United States, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer, sale and resale of the Notes Offered Securities, provided, in each case, that such offer, sale and resale and delivery of Offered Securities in the United States is made in compliance with this Agreement and the terms set out in Schedule “B” hereto and provided further that it is understood that no opinion is expressed as to any subsequent resale of any Offered Securities. In providing the extent governed by foregoing opinion, such counsel may rely upon the laws covenants, representation and warranties of Albertathe Corporation and the Underwriters set forth in this Agreement and Schedule “B” hereto, Ontario or Québec.and upon the covenants, representation and warranties of any purchasers in the United States;
(c4) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option, the issuance and delivery of the Broker Warrants and the authorization of this Agreement and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(5) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Laws, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Corporation’s Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(d) hereof;
(7) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Former Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(e) hereof;
(8) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iiic) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or suspending prohibiting the sale of the Notes Offered Securities or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for such that purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatenedcontemplated or threatened by any regulatory authority;
(ivd) since the respective dates as of which information is given in the Disclosure Materials, Final Prospectus (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the business, affairs, operations, assets, liabilities (contingent or otherwise), or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by the Corporation or prospects any Subsidiary which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(e) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws; and
(f) the Prospectus is true and correct in all material respects and contains no misrepresentation, constitutes full, true and plain disclosure of all material facts relating to the Offered Securities and to the Corporation and its Subsidiaries (taken considered as a whole), whole and does not contain an untrue statement of a material fact or any development involving omit to state a prospective material adverse change, financial or otherwisefact necessary to make the statements therein, in light of the business affairscircumstances in which they were made, operationsnot misleading;
(9) the Underwriters receiving the executed lock-up agreements, assetsin favour of the Underwriters, liabilities (contingent or otherwise) or capital from each director and officer of the Corporation and its Subsidiaries their respective associates in a form satisfactory to the Underwriters as required pursuant to Section 8(6) of this Agreement;
(taken 10) the Underwriters receiving a certificate from Computershare Trust Company of Canada as a whole)to the number of Common Shares issued and outstanding as at the end of business on the Business Day prior to the Closing Date;
(11) no order, from that disclosed ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the sale of the Common Shares or any of the Corporation’s Information Record issued securities being issued, and no proceeding for such purpose being, to the knowledge of the Corporation, pending or threatened by any securities regulatory authority or the Disclosure Materials (as they existed at the respective dates thereof)Exchange;
(v12) none the Corporation having delivered to the Underwriters evidence of the documents filed with Canadian Securities Regulators forming approval (or conditional approval) of the Corporation’s Information Record contained a misrepresentation as at listing and posting for trading of the time Initial Shares, Over-Allotment Shares, and Broker Warrant Shares on the relevant document was filed that has not since been correctedExchange, subject only to satisfaction by the Corporation of standard listing conditions;
(vi13) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, obligations under this Agreement required to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on be satisfied at or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside DateClosing Time;
(vii14) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms Underwriters receiving duly executed copies of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company Broker Warrant Certificates in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f15) evidence satisfactory to the Dealers that the Corporation’s board Underwriters not having exercised any rights of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating theretotermination set forth herein; and
(g16) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.Underwri
Appears in 1 contract
Conditions of Closing. The obligations of the Dealers hereunder are subject to the satisfaction of the following conditions:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description descriptions thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable Canadaapplicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto; and as to the first trade of the Notes pursuant to section 2.5 of National Instrument 45 -102 – Resale of Securities. It is understood that such counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:
(i) the Corporation has complied with all the covenants and satisfied all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.
Appears in 1 contract
Sources: Dealer Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Shares pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the satisfaction of the following conditions:
(a1) the Underwriters receiving at the Time of Closing, the Corporation will cause its counsel, Blake, favourable legal opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver legal counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local legal counsel acceptable to them legal counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.), to the effect set forth below subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly existing under the Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business, to own and lease its properties and assets;
(b) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares and grant the Over-Allotment Option;
(c) the authorized and issued capital of the Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder and this Agreement has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions, limitations and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and a limitation that no opinion is expressed as to the enforceability of the rights of indemnity, contribution or waiver of contribution set forth in this Agreement;
(e) the execution and delivery of this Agreement and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Shares and the grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the notice of articles or articles of the Corporation, any resolutions of the shareholders or directors of the Corporation, or the British Columbia Business Corporations Act or Canadian Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions;
(g) upon payment therefore and issuance in accordance with the terms of this Agreement, the Offered Shares will be validly issued as fully paid and non- assessable shares in the capital of the Corporation;
(h) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) 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 Canadian Securities Laws to permit the Offered Shares to be offered, sold and delivered in the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the applicable Canadian Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and to qualify the grant of the Over-Allotment Option to the Underwriters;
(j) the Offered Shares will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans and tax free savings accounts;
(k) subject only to the standard listing conditions and the requirements set forth in the conditional approval letters of the TSX and NASDAQ, the Offered Shares have been conditionally listed or approved for listing on the TSX and NASDAQ; and
(l) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Time of Closing, in a form acceptable to the Co-Lead Underwriters and their legal counsel, acting reasonably.
(2) the Underwriters receiving, at the Time of Closing, favourable legal opinions from legal counsel to the Dealers will have received from Corporation acceptable to the Co-Lead Underwriters, regarding certain Subsidiaries in a form acceptable to the Co-Lead Underwriters and their legal counsel, Torys LLPacting reasonably, a legal opinion dated the Closing Date, in form and substance satisfactory to the Dealers, with respect effect set out below:
(a) the Subsidiaries having been incorporated and existing under their jurisdiction of incorporation;
(b) the Subsidiaries having the corporate power and capacity to such matters own and lease their properties and assets and to conduct their businesses as described in the Dealers may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.Prospectus; and
(c) at the Time of Closing, the Corporation will deliver as to the Dealers a certificate authorized and issued share capital of the Subsidiaries, all of which are owned by the Corporation;
(3) the Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersCo-Lead Underwriters, acting reasonably, in form and content satisfactory to the Co-Lead Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, and, as applicable, the authorization of this Agreement and the transactions contemplated herein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation and the Subsidiaries, each dated within one (1) Business Day prior to the Closing Date;
(5) the Underwriters receiving, at the Time of Closing, a “bring down” comfort letter dated the Closing Date from the auditors of the Corporation, Deloitte LLP, in form and substance satisfactory to the Co-Lead Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(1)(c) hereof;
(6) the Underwriters receiving from the Corporation at the Time of Closing, a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Co-Lead Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(b) since the respective dates as of which information is given in the Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Prospectus or which would result in the Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iie) the representations and warranties of the Corporation contained herein in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Time of Closing with the same force and effect as if such representations and warranties were made as at the Time of Closing Closing, after giving effect to the transactions contemplated hereby;
(7) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(8) the Underwriters receiving, except for representations at the Time of Closing, a certificate from Olympia Trust Company as to the number of Common Shares issued and warranties which are made outstanding as at the end of a specific business day on the date other than prior to the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii9) at the Time of Closing, no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Shares or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSX or NASDAQ;
(iv10) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materialsapproval (or conditional approval) of the listing and posting for trading of the Offered Shares on the TSX and NASDAQ, there has been no material adverse change, financial or otherwise, subject only to satisfaction by the Corporation of standard listing conditions and matters set forth in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional listing approval letters of the Corporation TSX and its Subsidiaries (taken NASDAQ, as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)applicable;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi11) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Closing;
(i12) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii13) createthe Underwriters having received at the Time of Closing such further certificates, issue opinions of legal counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions Underwriters or their legal counsel shall request any such certificate or document within a reasonable period prior to the Time of this Agreement Closing that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Sources: Underwriting Agreement (Merus Labs International Inc.)
Conditions of Closing. The following are conditions precedent to the obligations of the Dealers hereunder are subject Agents to complete each Closing and to arrange for the satisfaction purchase of the following conditionsOffered Securities at each Closing Time, and which conditions are to be satisfied by the Corporation at or prior to each Closing Time and may be waived in writing in whole or in part by the Agents:
(a) at the Time of Closing, the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to deliver to the Dealers and their counsel, Torys LLP, a Agents favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence opinions dated and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely delivered on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date, in form and substance satisfactory to the DealersAgents, acting reasonably (it being understood that such counsel may rely to the extent appropriate in the circumstance: (i) as to matters of fact, on certificates of the Corporation executed on its behalf by a senior officer of the Corporation, on certificates of the Transfer Agent, as to its appointment as such and the issued capital of the Corporation and on certificates of the Warrant Agent as to its appointment as such; and (ii) on certificates of public officials), with respect to such the following matters as the Dealers may reasonably require relating (subject to the distribution of the Notes to the extent governed by the laws of Alberta, Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Dealers a certificate dated the Closing Date addressed to the Dealers usual and their counsel, customary assumptions and signed by the chief executive officer and the chief financial officer of the Corporation or such other officers of the Corporation as may be acceptable to the Dealers, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) that:qualifications):
(i) the Corporation is a valid and existing Corporation under the laws of the Province of British Columbia and is, with respect to the filing of annual reports, in good standing and has complied with all the covenants necessary corporate power and satisfied all the terms and conditions of this Agreement and the Trust Indenture capacity to carry on its part business and to be complied with own, lease and satisfied at or prior to operate its properties and assets, in each case as described in the Time of ClosingProspectus;
(ii) the representations Corporation has all necessary corporate power and warranties capacity: (A) to execute and deliver each of the Corporation contained herein are true Transaction Documents and correct in all material respects as of to perform its obligations hereunder and thereunder, (B) to issue, sell and deliver the Time of Closing with Offered Securities, (C) to grant the same force Over-Allotment Option, and effect as if made at (D) to create, issue and deliver the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose Broker Securities; thereunder have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in duly authorized by all necessary corporate action on the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement's part, and the Corporation has no reason to believe that duly executed and delivered each of the Acquisition will not be completed Transaction Documents, each of which constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the 2.7 Announcement on or prior rights of creditors generally and subject to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation other standard assumptions and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicablequalifications, including the passing qualifications that equitable remedies may be granted in the discretion of all requisite resolutions a court of the board competent jurisdiction and that enforcement of directors rights to indemnity, contribution and waiver of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver contribution set out in this Agreement and all other documents contemplated under this Agreement; and
(ii) create, issue and sell the Notes in accordance with the provisions of this Agreement and the Trust Indenture.may be limited by Applicable Law;
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations of the Dealers hereunder are subject to Agents under this Agreement shall be conditional upon the satisfaction or waiver of each of the following conditionsconditions prior to the Closing, it being understood that the Agents may waive, in whole or in part, or extend the time for compliance with, any of such conditions without prejudice to the rights of the Agents in respect of any such conditions or any other or subsequent breach or non-compliance, provided that to be binding, any such waiver or extension must be in writing:
(a1) at the Time of Closing, the Corporation will cause its counsel, Blake, Agents receiving a legal opinion from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver counsel to the Dealers and their counselCorporation (who may rely, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Agents as to the qualification of the Offered Shares for sale to the public in Canada and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or transfer agent of the Corporation.
(b) at the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing Date), in form and substance satisfactory acceptable to the DealersAgents and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is incorporated and exists under the Canada Business Corporations Act and has all requisite corporate power and capacity to carry on its business as currently conducted and to own and lease properties and assets;
(b) as to the authorized and issued capital of the Corporation, prior to the issue of the Offered Shares;
(c) the Corporation has all necessary corporate power, capacity and authority to
(i) execute, deliver and perform its obligations under this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates, as applicable,
(ii) create, issue and sell the Offered Shares, and (iii) issue the Corporate Finance Shares and the Agents’ Warrants;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates, as applicable, and the performance of its obligations thereunder, each of this Agreement the Subscription Agreements and the Agents’ Warrant Certificates have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates may be limited by Applicable Law;
(e) the execution and delivery of this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates, the fulfilment of the terms of this Agreement, the Subscription Agreements and the Agents’ Warrant Certificates by the Corporation, and the (i) issuance, sale and delivery of the Offered Shares, and (ii) issuance and delivery of the Corporate Finance Shares and the Agents’ Warrants, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, the Canada Business Corporations Act or any applicable Canadian Securities Laws;
(f) the Offered Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(g) the Corporate Finance Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Agents’ Warrants have been validly created and issued by the Corporation;
(i) the Penalty Shares have been duly and validly authorized, allotted and reserved for issuance, and, if issued, upon issuance as liquidated damages, the Penalty Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(j) the Agents’ Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Agents’ Warrants in accordance with their terms, the Agents’ Warrant Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) the offering, sale and issuance of the Offered Shares through the Agents to the Subscribers resident in the Selling Jurisdictions in Canada and the issuance and delivery of the Corporate Finance Shares and the Agents’ Warrants to the Agents in accordance with the terms of this Agreement are each exempt from the prospectus requirements of Canadian Securities Laws;
(l) no prospectus is required nor are any other documents, proceedings or approvals, permits, consents or authorizations of regulatory authorities required to be filed, taken or obtained prior to the Closing (other than those which have been filed, taken or obtained) under Canadian Securities Laws to permit the issuance by the Corporation of the Offered Shares or the Penalty Shares; provided that, with respect to the Penalty Shares, all representations and warranties of the Subscribers contained in the Subscription Agreements will continue to be true and correct as at the date of issuance of the Penalty Shares;
(m) no prospectus is required nor are any other documents, proceedings or approvals, permits, consents or authorizations of regulatory authorities required to be filed, taken or obtained prior to the Closing (other than those which have been filed, taken or obtained) under Canadian Securities Laws to permit the issuance by the Corporation of the Agents’ Warrant Shares on the exercise of the Agents’ Warrants in accordance with their terms;
(n) the first trade in the Offered Shares, Penalty Shares, Corporate Finance Shares and the Agents’ Warrant Shares will be exempt from the prospectus requirements of applicable Canadian Securities Laws and no prospectus, offering memorandum or other document will be required to be filed, no proceeding required to be taken and no approval, permit, consent or authorization of regulatory authorities required to be obtained by the Corporation under Applicable Securities Laws to permit such matters trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that at the time of such trade, among other requirements;
(i) the Corporation is and has been a “reporting issuer” (within the meaning of Canadian Securities Laws) in a jurisdiction of Canada for the four months immediately preceding the trade;
(ii) the trade is not a “control distribution” (as defined in NI 45-102);
(iii) no unusual effort is made to prepare the market or to create a demand for the security that is the subject of the trade;
(iv) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and
(v) if the selling security holder is an insider or officer of the Corporation, the selling securityholder has no reasonable grounds to believe that the Corporation is in default of “securities legislation” (as defined in National Instrument 14-101 – Definitions and Interpretation);
(o) Odyssey Trust Company, at its principal office in Vancouver, British Columbia, has been duly appointed as registrar and transfer agent for the Class A Shares; and
(p) the form of Agents’ Warrant Certificate has been duly approved and adopted by the board of directors of the Corporation and complies in all material respects with the constating documents of the Corporation;
(2) the Agents receiving a legal opinion from Osler, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”), in the same form as the Dealers may reasonably require relating opinion dated July 24, 2020 delivered by Osler to the distribution of Corporation;
(3) the Notes Agents receiving legal opinions from counsel to each Subsidiary (who may rely, to the extent governed by appropriate in the laws circumstances, as to matters of Albertafact on certificates of officers, Ontario or Québec.public and exchange officials related to each Subsidiary), in form and substance acceptable to the Agents and their counsel, acting reasonably, substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) such Subsidiaries having been incorporated and existing under the Applicable Law of their respective jurisdictions of incorporation;
(b) such Subsidiaries having the corporate capacity and power to own and lease their properties and assets and to conduct their business as currently being conducted;
(c) at as to the Time authorized and issued share capital of Closingsuch Subsidiaries and to the ownership thereof; and
(d) such Subsidiaries being current with all corporate filings required to be made under their respective jurisdictions of incorporation and all other jurisdictions in which they exist or carry on any material business, and have all necessary licences, leases, permits, authorizations and other approvals necessary to permit them to conduct their respective business as currently conducted;
(4) if any sales of Offered Shares are made to, or for the account or benefit of, persons in the United States or U.S. Persons, the Corporation will deliver Agents receiving an opinion of Jenner & Block LLP, addressed to the Dealers a certificate Agents, in form and substance reasonably satisfactory to the Agents and their counsel, acting reasonably, to the effect that no registration is required under the U.S. Securities Act, in connection with the offer, sale and delivery of the Offered Shares to, or for the account or benefit of, persons in the United States and U.S. Persons;
(5) the Agents receiving certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersAgents, acting reasonably, in form and substance satisfactory to the Agents, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the sale of the Offered Shares, the issuance and delivery of the Corporate Finance Shares and the Agents’ Warrants, and the authorization of the Offering Documents and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(6) the Agents having received a certificate dated the Closing Date of each Subsidiary, signed by an appropriate officer of such Subsidiary and addressed to the Agents and Agents’ counsel, in form and substance satisfactory to the Agents, acting reasonably, certifying for and on behalf of such Subsidiary and not in their personal capacity, to the actual knowledge of the person signing such certificate, after having made due and relevant inquiry, as to: (i) the corporate good standing, and (ii) the authorized capital and ownership, of such Subsidiary;
(7) the Agents receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within three Business Days prior to the Closing Date;
(8) the Agents receiving a certificate, dated as of the Closing Date, signed by two senior officers of the Corporation as may be acceptable to the Agents, acting reasonably, certifying for and on behalf of the Corporation (without personal liability) ), to the best of their knowledge, information and belief, after due inquiry, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality qualification, in all respects) as of the Closing Time, as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects (except where already qualified by a materiality qualification, in which case the Corporation shall have complied in all respects) with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;Closing Time; and
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Notes has been issued and no proceedings for such purpose have been instituted or are pending or, to the best of the knowledge of such officers, threatened;
(ivc) since the respective dates date of the Disclosure Materials, this Agreement (A) there has been no material adverse changechange (actual, anticipated, contemplated or threatened, whether financial or otherwise, ) in the businessBusiness, affairs, operations, assetsBusiness Assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation on a consolidated basis, and its Subsidiaries (taken as B) no transaction has been entered into by the Corporation or any Subsidiary which is material to the Corporation on a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)consolidated basis;
(v9) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been correctedAgents receiving fully executed Agents’ Warrant Certificates;
(vi10) the Acquisition has not Subscription Agreements having been terminated executed, endorsed or amended in any material respectauthenticated, no material provision has been waived by the Corporation and no event has occurred or condition exists whichas applicable, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company parties thereto in form and substance satisfactory to the DealersCorporation and the Agents, acting reasonably;
(f11) evidence satisfactory the Corporation having delivered, or caused to be delivered, the Offered Shares and the Corporate Finance Shares in accordance with Section 9;
(12) the Agents receiving a certificate from Odyssey Trust Company as to the Dealers that number of Class A Shares issued and outstanding as at the Corporation’s board end of directors has authorized the Business Day on the date prior to the Closing Date;
(13) the Corporation complying with all of its covenants and approved obligations under this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Closing Time of Closing so as to:
in all material respects (i) execute and deliver this Agreement and except where already qualified by a materiality qualification, in which case the Corporation shall have complied in all other documents contemplated under this Agreementrespects); and
(ii14) create, issue and sell the Notes in accordance with the provisions Agents not having exercised any rights of this Agreement and the Trust Indenturetermination set forth herein.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligations Underwriters’ obligation to purchase the Offered Securities pursuant to this Agreement (including the obligation to complete the purchase of the Dealers hereunder are Initial Units and the Over-Allotment Securities, as the case may be) shall be subject to the satisfaction of following conditions having been met at the following conditionsClosing Time:
(a1) at the Time of ClosingUnderwriters receiving favourable legal opinions from Stikeman Elliott LLP, counsel to the Corporation will cause its counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(who may rely, to deliver to the Dealers and their counsel, Torys LLP, a favourable legal opinion with respect to all such matters as the Dealers may reasonably request, including, without limiting the generality of the foregoing: to the existence and corporate power and capacity of the Corporation; the creation, authorization, issue and sale of the Notes; the authorization of the Trust Indenture; that the attributes of the Notes are consistent in all material respects with the description thereof extent appropriate in the Term Sheets; that the form of global certificate representing the Notes has been approved by the Corporation and complies with the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteecircumstances, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes, do not and will not result in a breach of any of (A) the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, in accordance with the terms and conditions of this Agreement, is, or will be exempt from the prospectus requirements of Canadian Securities Laws and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such counsel may rely on the opinions of local counsel acceptable to them counsel to the Underwriters as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements provinces in which they are qualified to have such opinions of local counsel directly addressed to the Dealers), practice and may rely, to the extent appropriate in the circumstances, as to matters of fact, fact on certificates of an officer officers, public and exchange officials or of the auditor or Transfer Agent of the Corporation.), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation is a corporation validly continued and existing under the Canada Business Corporations Act and has all requisite corporate power and capacity to carry on business, to own and lease properties and assets;
(b) at the Time Corporation has all necessary corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement and the Warrant Indenture, as applicable, (ii) to create, issue and sell the Offered Securities, and (iii) to grant the Over-Allotment Option;
(c) the authorized and issued capital of Closingthe Corporation;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement and the Warrant Indenture, as applicable, and the performance of its obligations under the Agreement and the Warrant Indenture, and this Agreement and the Warrant Indenture have been duly executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement and the Warrant Indenture may be limited by Applicable Law;
(e) the execution and delivery of this Agreement and the Warrant Indenture and the fulfilment of the terms of this Agreement and the Warrant Indenture by the Corporation and the issuance, sale and delivery of the Offered Securities, the Dealers grant of the Over-Allotment Option, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation that were approved since an agreed upon date, or any applicable corporate law or Securities Laws;
(f) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Offering Documents (and any Prospectus Amendment) and the filing thereof with the Securities Commissions in the Qualifying Jurisdictions;
(g) the Unit Shares have received been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(h) the Unit Warrants have been validly created and issued as warrants of the Corporation;
(i) the Over-Allotment Option has been duly and validly authorized and granted by the Corporation, and the Over-Allotment Shares and Over-Allotment Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Corporation and, upon the exercise of the Over-Allotment Option, including receipt by the Corporation of payment in full therefor, the Over-Allotment Shares and Over-Allotment Warrants will be duly and validly created, authorized, issued and outstanding and the Over- Allotment Shares will be fully paid and non-assessable shares;
(j) the Warrant Shares and Over-Allotment Warrant Shares have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants and Over-Allotment Warrants, as applicable, in accordance with their respective terms, the Warrant Shares and Over-Allotment Warrant Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(k) 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 Canadian Securities Laws to qualify the distribution to the public of the Offered Securities in the Qualifying Jurisdictions by or through persons who are duly registered under the applicable Canadian Securities Laws and who have complied with the relevant provisions of such applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option;
(l) the issuance of the Warrant Shares and Over-Allotment Warrant Shares issuable upon exercise of the Warrants and Over-Allotment Warrants are exempt from the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(m) subject to the qualifications and assumptions set out therein, the statements set forth in the Prospectus under the caption “Eligibility for Investment” and “Canadian Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, are fair summaries of the matters discussed therein;
(n) subject only to the standard listing conditions, the Unit Shares, the Over-Allotment Shares, the Warrant Shares, the Over-Allotment Warrant Shares have been conditionally listed or approved for listing on the TSX;
(o) Computershare Trust Company of Canada has been duly appointed as registrar and transfer agent of the Common Shares and as warrant agent under the Warrant Indenture;
(p) the attributes of the Offered Securities conform in all material respects with the description thereof contained in the Final Prospectus; and
(q) to such other matters as may reasonably be requested by the Underwriters no less than 48 hours prior to the Closing Time; in form and substance acceptable to the Underwriters and their counsel, Torys LLPacting reasonably.
(2) if any of the Offered Securities are offered or sold in the United States or to, or for the account or benefit of, U.S. Persons, the Underwriters shall have received at the Closing Time a customary and favourable legal opinion dated the Closing Date, Date in form and substance reasonably satisfactory to the Dealers, with respect to such matters as the Dealers may reasonably require relating Underwriters to the distribution effect that no registration is required under the U.S. Securities Act in connection with the offer and resale of the Notes Offered Securities under Rule 144A to Qualified Institutional Buyers, provided, that such offer, resale and delivery of Offered Securities in the extent governed by United States or to, or for the laws account or benefit of, U.S. Persons, is made in compliance with this Agreement and the terms set out in Schedule “B” hereto and provided further that it being understood that no opinion is expressed as to any subsequent resale of Alberta, Ontario or Québec.any Offered Securities;
(c3) at the Time of Closing, the Corporation will deliver to the Dealers a certificate Underwriters having received certificates dated the Closing Date addressed to the Dealers and their counsel, and signed by the chief executive officer and the chief financial officer of the Corporation or such other two senior officers of the Corporation as may be acceptable to the DealersUnderwriters, acting reasonably, in form and substance satisfactory to the Underwriters, acting reasonably, with respect to:
(a) the constating documents of the Corporation;
(b) the resolutions of the directors of the Corporation relevant to the Offering Documents, the sale of the Offered Securities, the grant of the Over-Allotment Option and the authorization of this Agreement and the Warrant Indenture and the transactions contemplated herein and therein; and
(c) the incumbency and signatures of signing officers for the Corporation;
(4) the Underwriters receiving certificates of status and/or compliance, where issuable under Applicable Law, for the Corporation and the Subsidiaries, each dated within one Business Day prior to the Closing Date;
(5) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Former Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(6) the Underwriters receiving an auditors “bring down” comfort letter dated the Closing Date from the Corporation’s Auditors, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 5(1)(c) hereof;
(7) the Underwriters receiving a certificate dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer or such other senior officer(s) of the Corporation as may be acceptable to the Underwriters, certifying for and on behalf of the Corporation (and without personal liability) , after having made due enquiries, that:
(ia) the representations and warranties of the Corporation contained in this Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of the Closing Time as if such representations and warranties were made as at the Closing Time, after giving effect to the transactions contemplated hereby;
(b) the Corporation has complied in all material respects with all the covenants and satisfied in all material respects all the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of ClosingClosing Time;
(iic) no order, ruling or determination having the representations and warranties effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Securities or any other securities of the Corporation contained herein (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened by any regulatory authority; and
(d) the Prospectus Supplement is true and correct in all material respects and contains no misrepresentation, constitute full, true and plain disclosure of all material facts relating to the Offered Securities and to the Corporation and its Subsidiaries considered as a whole and do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the Time circumstances in which they were made, not misleading;
(8) the Underwriters receiving the executed lock-up agreements, in favour of Closing with the same force Underwriters, from each director and effect officer of the Corporation in a form satisfactory to the Underwriters as if made required pursuant to Section 9(3) of this Agreement;
(9) the Underwriters receiving a certificate from Computershare Trust Company of Canada as to the number of Common Shares issued and outstanding as at the Time end of Closing after giving effect Business Day on the date prior to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii10) no order, ruling or determination having the effect of ceasing the trading or suspending trading in any securities of the Corporation or prohibiting the sale of the Notes has been Offered Securities or any of the Corporation’s issued securities being issued and no proceedings proceeding for such purpose have been instituted or are being pending or, to the best knowledge of the knowledge of such officersCorporation, threatenedthreatened by any securities regulatory authority or the TSX;
(iv11) since the respective dates Corporation having delivered to the Underwriters evidence of the Disclosure Materials, there has been no material adverse change, financial approval (or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects conditional approval) of the Corporation listing and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital posting for trading of the Unit Shares, Warrant Shares, Over-Allotment Shares and Over-Allotment Warrant Shares on the TSX, subject only to satisfaction by the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof)of standard listing conditions;
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi12) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation complying with all of its covenants and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has obligations under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the Dealers, acting reasonably;
(f) evidence satisfactory to the Dealers that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each case, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred satisfied at or prior to the Time of Closing so as to:Time;
(i13) execute and deliver this Agreement and all other documents contemplated under this Agreementthe Underwriters not having exercised any rights of termination set forth herein; and
(ii14) createthe Underwriters having received such further certificates, issue opinions of counsel and sell other documentation from the Notes in accordance with Corporation contemplated herein, provided, however, that the provisions of this Agreement Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to the Closing Time that is sufficient for the Corporation to obtain and the Trust Indenturedeliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The Underwriters’ several obligations under this Agreement (including the obligation to complete the purchase of the Dealers hereunder Offered Securities or any of them) are conditional upon and subject to the satisfaction of the following conditions:
(a) Underwriters receiving at the Time of ClosingClosing on each Closing Date:
(1) favourable legal opinions addressed to the Underwriters, in form and substance satisfactory to the Corporation will cause its Underwriters, acting reasonably, and subject to customary assumptions, qualifications and limitations, dated as of the Closing Date, from the Company’s Canadian counsel, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPLLP (which counsel may rely on, to deliver the extent appropriate in the circumstances, upon local counsel or to arrange for separate opinions of local counsel and, as to matters of fact, may rely on certificates of officers, public officials or of the auditors or transfer agents of the Company), to the Dealers effect set forth below and their counsel, Torys LLP, a favourable legal opinion with respect to all such other matters as the Dealers Underwriters may reasonably request, includingincluding without limitation, without limiting that:
(a) the generality Company is a “reporting issuer”, or its equivalent, in each of the foregoing: Qualifying Jurisdictions and it is not listed as in default of any of the Canadian Securities laws in the Qualifying Jurisdictions;
(b) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions have been obtained by the Company to qualify the distribution to the existence and corporate power and capacity public of the Corporation; the creation, authorization, issue and sale Offered Securities in each of the Notes; Qualifying Jurisdictions through persons who are registered under applicable Canadian Securities Laws and who have complied with the authorization relevant provisions of applicable Canadian Securities Laws;
(c) this Agreement has been duly executed and delivered by the Company to the extent covered by the laws of the Trust Indenture; that Province of British Columbia and the attributes federal laws of Canada applicable therein;
(d) subject only to the Notes are consistent in all material respects with Standard Listing Conditions, the description thereof Offered Securities have been conditionally approved for listing on the TSX;
(e) the statements set forth in the Term Sheets; that Prospectus Supplements under the form caption “Eligibility for Investment” are true and correct;
(f) the statements set forth in the Prospectus Supplements under the caption “Material Canadian Federal Income Tax Consequences for Holders of global certificate representing the Notes has been approved by the Corporation and complies with Our Class A Common Stock”, insofar as they purport to describe the provisions of the Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trusteelaws referred to therein, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect are fair summaries of the Notes under matters discussed therein, subject to the Trust Indentureassumptions, qualifications and limitations set out therein; the enforceability of this Agreement, the Trust Indenture and the Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under and
(g) this Agreement constitutes a legal, valid and the Trust Indenture, including the issuance binding obligation of the NotesCompany, do not and will not result in a breach of any of (A) enforceable against the provisions of the constating documents of the Corporation, or (B) any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA and the Business Corporations Act (Ontario); the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws; that no authorization, consent or approval of, or registration, filing or recording of the Trust Indenture with, any governmental or regulatory authority under any applicable statute or regulation of general application of the Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; and that the offering, issuance, sale and delivery of the Notes by the Corporation to purchasers in the Offering Jurisdictions, Company in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the terms rights of creditors generally and conditions subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of this Agreementa court of competent jurisdiction and that enforcement of rights to indemnity, iscontribution and waiver of contribution may be limited by applicable law.
(2) favourable legal opinions addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from counsel to each of the Subsidiaries, which counsel in turn may rely, as to matters of fact, on certificates of auditors, public officials and officers of the Subsidiaries, as appropriate, with respect to the following matters: (i) each of the Subsidiaries is a corporation existing under the laws of the jurisdiction in which it was incorporated, amalgamated or will be exempt continued, as the case may be, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets and to conduct its business as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectuses; and (ii) the issued and outstanding shares of the Subsidiaries are registered, directly or indirectly, in the name of the Company;
(3) favourable legal opinions addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, and subject to customary assumptions, qualifications and limitations, dated as of such Closing Date, from the prospectus requirements of Canadian Securities Laws and no prospectus will be requiredCompany’s United States corporate counsel, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order, or authorization of any regulatory authority will be required to be obtained under Canadian Securities Laws to issue and deliver the Notes to such purchasers, other than the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto. It is understood that such Holland & ▇▇▇▇ LLP (which counsel may rely on the opinions of local counsel acceptable to them as to matters governed by the laws of jurisdictions other than Canada and the Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to have such opinions of local counsel directly addressed to the Dealers), and may relyon, to the extent appropriate in the circumstances, as to matters of fact, on certificates of an officer officers, public officials or of the Corporation.auditors or transfer agents of the Company);
(b4) at favourable legal opinions addressed to the Time of Closing, the Dealers will have received from their counsel, Torys LLP, a legal opinion dated the Closing DateUnderwriters, in form and substance satisfactory to the DealersUnderwriters, with respect acting reasonably, and subject to customary assumptions, qualifications and limitations, dated as of such matters as Closing Date, from the Dealers Company’s United States counsel, ▇▇▇▇▇▇ LLP (which counsel may reasonably require relating to the distribution of the Notes rely on, to the extent governed by appropriate in the laws circumstances, as to matters of Albertafact, Ontario certificates of officers, public officials or Québec.of the auditors or transfer agents of the Company);
(c5) at the Time of Closing, the Corporation will deliver favourable legal opinions addressed to the Dealers Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, and subject to customary assumptions, qualifications and limitations, dated as of such Closing Date, from the Company’s United States regulatory counsel, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (which counsel may rely on, to the extent appropriate in the circumstances, as to matters of fact, certificates of officers, public officials or of the auditors or transfer agents of the Company);
(6) favourable legal opinions addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, and subject to customary assumptions, qualifications and limitations, dated as of such Closing Date, from the Company’s United States Intellectual Property counsel, Proskauer Rose LLP (which counsel may rely on, to the extent appropriate in the circumstances, as to matters of fact, certificates of officers, public officials or of the auditors or transfer agents of the Company);
(7) a Rule 10b-5 negative assurance statement, dated as of such Closing Date, of United States counsel for the Company, ▇▇▇▇▇▇ LLP, and of United States counsel to the Underwriters, DLA Piper LLP (US) in form and substance satisfactory to the Underwriters;
(8) a copy of the written notice addressed to the Company from FINRA that it has “no objections” to the proposed underwriting terms and arrangements among the Company and the Underwriters set forth in this Agreement;
(9) a certificate dated the Closing Date addressed to the Dealers and their counsel, Underwriters and signed by the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Corporation Company or such other officers of as the Corporation as Underwriters may be acceptable to the Dealers, acting reasonablyagree, certifying for and on behalf of the Corporation (without Company, and not in their personal liability) thatcapacities, to the best of their knowledge, after having made due inquiries, with respect to the following matters:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Offered Securities or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened under any Applicable Securities Laws or by any regulatory authority;
(b) since the date of the most recent Financial Statements included or incorporated by reference in the Prospectus Supplements (exclusive of any supplement thereto), there has been no material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects or capital of the Company and its Subsidiaries, taken as a whole;
(c) other than the Offering, no material change relating to the Company on a consolidated basis has occurred since the date of this Agreement with respect to which the requisite material change report has not been filed, and no such disclosure has been made on a confidential basis that remains confidential;
(d) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact or the existence of any new material fact) contained in the Prospectuses which fact or change is, or may be, of such a nature as to render any statement in the Prospectuses misleading or untrue in any material respect or which would result in a misrepresentation (as defined under Canadian Securities Laws) in the Prospecutuses or which would result in the Prospectuses not complying with Applicable Securities Laws;
(e) the Corporation Company has complied in all material respects with all the covenants and satisfied in all material respects the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Time of Closing;; and
(iif) the representations and warranties of the Corporation Company contained herein in this Agreement and in any certificates of the Company delivered pursuant to or in connection with this Agreement, are true and correct in all material respects as of at the Time of Closing Closing, with the same force and effect as if made on and as at the Time of Closing Closing, after giving effect to the transactions contemplated herebyby this Agreement, except for in respect of any representations and warranties which that are made to be true and correct as of a specific date other than the Closing Datespecified date, in which case they will be true and correct in all material respects as of that date onlyonly and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects;
(iii10) no ordera certificate dated as of such Closing Date, ruling or determination having addressed to the effect of ceasing the trading or suspending the sale Underwriters signed by two senior officers of the Notes has been issued and no proceedings for such purpose have been instituted or are pending orCompany, to the best of the knowledge of such officers, threatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Dealers and the Dealers’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa1” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “A (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “A- (stable)” and the Corporation shall deliver to the Dealers letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Supplemental Indentures shall have been executed and delivered by each of the Corporation and the Trust Company in form and substance satisfactory to the DealersUnderwriters, acting reasonably;
(f) evidence satisfactory , with respect to the Dealers that articles, by-laws and other organizational documents of the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, in each caseCompany, all matters relating thereto, and have authorized and approved the issuance of the Notes and all matters relating thereto; and
(g) all actions required to be taken by or on behalf of the Corporation and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation Company relating to this Agreement, and the incumbency and specimen signatures of signing officers of the Company;
(11) a certificate of Computershare Trust Company of Canada, as registrar and transfer agent of the Class A Shares in Canada, certifying as to the number of Class A Shares issued and outstanding on the Business Day prior to such Closing Date;
(12) a comfort letter, dated as of such Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, from BDO Canada LLP bringing forward to the date which is two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(1)(d) of this Agreement; and
(13) a certificate, dated as of such Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, from the chief financial officer of the Company bringing forward to the date which is two Business Days prior to the Closing Date the information contained in the certificate referred to in the third paragraph subsection 4(1)(d) of this Agreement;
(14) The Underwriters shall not have exercised any rights of termination set forth in Section 11 of this Agreement.
(15) The Company shall have complied in all material respects with the terms and conditions of this Agreement on its part to be complied with at or prior to the Closing Time.
(16) The representations and warranties of the Company contained in this Agreement and in any certificates or other documents delivered by the Company pursuant to or in connection with this Agreement shall be true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they will be true and correct in all material respects as of that date only and in respect of any representations and warranties that are subject to a materiality qualification in which case, they will be true and correct in all respects.
(17) Each of the executive officers and directors of the Company and each Subsidiary shareholder of the Company listed on Schedule B shall have executed a lock-up agreement in the form set forth in Schedule “A” to this Agreement.
(18) The Underwriters shall have received the Underwriting Fee in respect of the Offered Securities.
(19) The Underwriters shall have received at the Time of Closing such further certificates, opinions of counsel and all requisite filings with governmental authoritiesother documentation from the Company as may be contemplated herein or as the Underwriters may reasonably require, will have occurred at provided, however, that the Underwriters shall request any such certificate or document within a reasonable period prior to the Time of Closing so as to:
(i) execute that is sufficient for the Company to obtain and deliver this Agreement such certificate, opinion or document, and all other documents contemplated under this Agreement; and
(ii) createin any event, issue and sell at least 48 hours prior to the Notes in accordance with the provisions Time of this Agreement and the Trust IndentureClosing.
Appears in 1 contract
Sources: Underwriting Agreement (Helius Medical Technologies, Inc.)