EXHIBIT 1
GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY
UNDERWRITING AGREEMENT
____% GUARANTEED NOTES DUE _______
October __, 2001
GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY 0000 Xxxxxxx Xxx Xx.
Xxxxxx, XX X0X 0X0
GENERAL MOTORS CORPORATION
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Ladies and Gentlemen:
We (the "Underwriters") understand that General Motors Nova Scotia
Finance Company, a Nova Scotia unlimited liability company (the "Issuer"),
proposes to issue and sell to the underwriters named in Schedule I hereto, for
whom Xxxxxxx, Sachs & Co. is acting as representative (the "Representative"),
[$ ] aggregate principal amount of [ %] Guaranteed Notes due [ ] (the
"Securities") identified in Schedule II hereto and issued under the Indenture
specified in Schedule II hereto. The Securities are to be unconditionally
guaranteed (the "Guarantees") as to payment of principal, premium, if any,
interest and additional amounts, if any, by General Motors Corporation, a
Delaware corporation (the "Guarantor") upon the basis and on the terms
specified in the Indenture.
I.
The Issuer and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No. 333-70820)
and Amendment No. 1 thereto including a prospectus relating to the Securities
and the Guarantees and have filed with, or mailed for filing to, the Commission
a prospectus pursuant to Rule 424(b)(1) under the Securities Act of 1933. The
term Registration Statement means the registration statement as amended to the
date of this Agreement. The Prospectus means the prospectus included in the
Registration Statement, specifically relating to the Securities and the
Guarantees. As used herein, the terms "Registration Statement" and "Prospectus"
shall include in each case the material incorporated by reference therein.
II.
The Issuer and the Guarantor are advised by the Representative that
the Underwriters propose to make a public offering of their respective portions
of the Securities as soon after this Agreement is entered into as in the
Representative's judgment is advisable. The terms of the public offering of the
Securities are set forth in the Prospectus.
III.
Payment for the Securities shall be made by wire transfer to an
account designated by the Issuer in immediate funds at the offices of Xxxxx
Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m.
("New York time") on [ ], 2001 or at such other time, not later than [ ], 2001
as shall be designated by the Representative, upon delivery to the
Representative for the respective accounts of the several Underwriters of the
Securities registered in such names and in such denominations as the
Representative shall request in writing not less than two full business days
prior to the date of delivery. The time and date of such payment and delivery
are herein referred to as the Closing Date.
IV.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registra
tion Statement shall be in effect, no proceedings for such purpose
shall be pending before or threatened by the Commission, there shall
have been no material adverse change (not in the ordinary course of
business) in the financial condition of the Issuer or of the
Guarantor and its subsidiaries, taken as a whole, from that set forth
in the Registration Statement and the Prospectus and the
representations and warranties of the Issuer and the Guarantor in
this Agreement shall be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date; and the Representative shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Issuer and the Guarantor, to the foregoing
effect. The officer(s) making such certificate may rely upon the best
of such officers' knowledge as to proceedings threatened.
(b) The Representative shall have received on the Closing Date
an opinion of Xxxxxxx XxXxxxxx Stirling Scales, counsel to the
Issuer, dated the Closing Date, to the effect set forth in Exhibit A.
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(c) The Representative shall have received on the Closing Date
an opinion of Osler, Xxxxxx & Harcourt LLP, tax counsel to the
Issuer, to the effect set forth in Exhibit B.
(d) The Representative shall have received on the Closing Date
an opinion of Xxxxxx X. Xxxxxxx, Attorney - General Motors
Corporation Legal Staff, special United States counsel to the Issuer
and counsel to the Guarantor, dated the Closing Date, to the effect
set forth in Exhibit C.
(e) The Representative shall have received on the Closing Date
an opinion of the General Tax Counsel of, or tax counsel to, the
Guarantor, dated the Closing Date, to the effect set forth in Exhibit
D.
(f) The Representative shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Closing Date, to the effect set forth in Exhibit E.
(g) The Representative shall have received on the Closing Date a
letter dated the Closing Date in form and substance satisfactory to
the Representative, from Deloitte & Touche, independent accountants
of the Guarantor, containing statements and information of the type
ordinarily included in the accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and the Prospectus.
V.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Issuer and the Guarantor covenant as follows:
(a) To furnish the Representative, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Representative may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by the Issuer and the Guarantor
with the Commission subsequent to the date of the Prospectus,
pursuant to the Securities Exchange Act of 1934, which are deemed to
be incorporated by reference in the Prospectus.
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(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Securities and the Guarantees,
to furnish the Representative a copy of each such proposed amendment
or supplement.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters, the Prospectus is required by law to be delivered, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare
and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light
of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law.
(d) To promptly advise the Representative of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose, and of the receipt by the Issuer or the
Guarantor of any notification with respect to the suspension of the
qualification of the Securities and the Guarantees for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) To endeavor to qualify the Securities and the Guarantees for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and to
pay all reasonable expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and
in connection with the determination of the eligibility of the
Securities and the Guarantees for investment under the laws of such
jurisdictions as the Representative may designate.
(f) To make generally available to the holders of Securities as
soon as practicable an earnings statement of the Guarantor covering a
twelve month period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section 11(a) of the
Securities Act of 1933.
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VI.
The Issuer and the Guarantor represent and warrant to each Underwriter
that (i) each document, if any, filed or to be filed pursuant to the Securities
Exchange Act of 1934 and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with such Act and the
rules and regulations thereunder, (ii) each part of the Registration Statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act of 1933 relating to the Securities
and the Guarantees, when such part became effective, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder and
(iv) the Registration Statement and the Prospectus do not contain and, as
amended or supplemented, if applicable, will not contain any 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 were
made, not misleading; except that these representations and warranties do not
apply to statements or omissions in the Registration Statement or the
Prospectus based upon information furnished to the Issuer or the Guarantor in
writing by any Underwriter expressly for use therein.
The Issuer and the Guarantor jointly and severally agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act of
1933 or Section 20 of the Securities Exchange Act of 1934, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus if used within the period set forth in paragraph
(c) of Article V hereof and as amended or supplemented if the Issuer or the
Guarantor shall have furnished any amendments or supplements thereto, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Issuer or the
Guarantor by any Underwriter expressly for use therein.
Each Underwriter severally agrees to indemnify and hold harmless the
Issuer, the Guarantor, the directors and the officers of the Issuer and the
Guarantor who sign the Registration Statement and any person controlling the
Issuer or the
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Guarantor to the same extent as the foregoing indemnity from the Issuer and the
Guarantor to each Underwriter, but only with reference to information relating
to such Underwriter furnished in writing by such Underwriter expressly for use
in the Registration Statement or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding; provided, however, that in the event the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of any
such proceeding, the indemnified party shall then be entitled to retain counsel
reasonably satisfactory to itself and the indemnifying party shall pay the
reasonable fees and disbursements of such counsel related to the proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the reasonable fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to employ counsel satisfactory to the
indemnified party pursuant to the next preceding sentence. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm (in addition to local counsel) for
all such indemnified parties. Such firm shall be designated in writing by the
Representative in the case of parties indemnified pursuant to the second
preceding paragraph and by the Issuer and the Guarantor in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been
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sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in this Article VI is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Issuer and the Guarantor on the one hand and the Underwriters
on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuer and the
Guarantor on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer and the Guarantor on the one hand and
the Underwriters on the other in connection with the offering of the Securities
shall be deemed to be in the same proportion as the total net proceeds from the
offering of such Securities (before deducting expenses) received by the Issuer
bear to the total underwriting discounts and commissions received by the
Underwriters in respect thereof. The relative fault of the Issuer and the
Guarantor on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuer and the
Guarantor on the one hand or by the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Issuer, the Guarantor and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Article VI were
determined by pro rata allocation or by any other method of allocation which
does not take account of the considerations referred to in the immediately
preceding paragraph. The amounts paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Article VI, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten and
distributed to the public by such
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Underwriter were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VI are several, in
proportion to the respective principal amounts of Securities purchased by each
of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Issuer and the Guarantor in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Issuer, the Guarantor and the directors
or officers or any person controlling the Issuer or the Guarantor and (iii)
acceptance of any payment for any of the Securities.
VII.
Notwithstanding anything herein contained, the Representative, may
terminate this Agreement (upon consultation with the Issuer and the Guarantor)
at any time prior to the time on the Closing Date at which payment would
otherwise be due under this Agreement to the Issuer if, in the opinion of the
Representative, there shall have been such a change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which in its view will have a materially adverse
effect on the success of the offering and distribution of or a secondary market
for the Securities. After consultation with the Issuer and the Guarantor, the
parties to this Agreement shall be released and discharged from their
respective obligations under this Agreement without liability on the part of
any Underwriter or on the part of the Issuer and the Guarantor and each party
will pay its own expenses.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Issuer or the
Guarantor to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Issuer or the Guarantor shall be unable to
perform its obligations under this Agreement, the Issuer and the Guarantor will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement, with respect to themselves, severally, for all reasonable
out-of-pocket expenses
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(including the reasonable fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
The Issuer irrevocably agrees that any legal action or proceeding
against it arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered against it in connection
with this Agreement may be brought in any Federal or New York State court
sitting in the Borough of Manhattan, and irrevocably accepts and submits to the
jurisdiction of each of the aforesaid courts in person, generally and
unconditionally with respect to any such action or proceeding for itself and in
respect of its property, assets and revenues. The Issuer hereby also
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any such action or
proceeding brought in any such court and any claim that any such action or
proceeding has been brought in an inconvenient forum. Nothing contained herein
shall limit any right to bring any legal action or proceeding in any other
court of competent jurisdiction. The Issuer hereby appoints the Guarantor as
its agent for service of process in New York.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXXX, SACHS & CO.
On behalf of itself and the other
Underwriters name heretofore
By: ___________________________
Accepted:
GENERAL MOTORS NOVA SCOTIA FINANCE COMPANY
By: ____________________
Name:
Title:
GENERAL MOTORS CORPORATION
By: ____________________
Name:
Title:
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SCHEDULE I
Principal Amount
of Securities
To Be Purchased by
Underwriter Underwriter
----------- -------------------
[ ]....................................... $[ ]
Total.................................................. $[ ]
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Schedule II
Representative: [ ]
Underwriting Agreement
dated: [ ], 2001
Indenture: Indenture dated as of [ ], 2001
between the Issuer, the Guarantor
and Citibank, N.A., as Trustee.
Maturity: [ ]
Aggregate principal amount: [ ]
Interest Rate: The Notes will bear interest at a
rate of [ %] payable semiannually
in arrears on each Interest Payment
Date.
Redemption Provisions: [ ]
Interest Payment Dates: [ ] commencing [ ],
in respect of the period from [ ]
to [ ], until the principal
amount thereof is paid or made
available for payment.
Listing: [ ]
Offering Price: $[________] per Note.
Other Principal Terms: The purchase price will be payable
in immediately available funds on
the Closing Date.
Book Entry Form: The Notes will be issued in the
form of one or more fully
registered global securities
(collectively, the "Global Notes")
and registered in the name of Cede
& Co., as nominee for the
Depository Trust Company ("DTC").
Together, the Notes represented by
the Global Notes will equal the
aggregate principal amount of the
Notes outstanding at
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any time. Beneficial interests in
the Global Notes will be shown on,
and the transfers thereof will be
effected only through, records
maintained by DTC or its nominee.
The Global Notes may be
transferred, in whole and not in
part, only to another nominee of
DTC or to a successor of DTC or its
nominee. The Notes will not be
issued in bearer form.
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EXHIBIT A
OPINION OF XXXXXXX XxXXXXXX STIRLING SCALES
The opinion to be delivered pursuant to Article IV, paragraph (b) of
the Underwriting Agreement shall be to the effect that:
(i) the Issuer has been duly incorporated, is validly existing
as an unlimited liability company in good standing under the laws of
Nova Scotia and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification;
(ii) the Indenture has been duly authorized, executed and
delivered by the Issuer;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Issuer;
(iv) no authorization, consent or approval of, or registration
or filing with, any governmental or public body or regulatory
authority is required on the part of the Issuer pursuant to the laws
of the Province of Nova Scotia or of the federal law of Canada
applicable therein (the "Applicable Laws") for the issuance of the
Securities in accordance with the Indenture or the sale of the
Securities in accordance with the Underwriting Agreement;
(v) the execution and delivery of the Indenture, the issuance of
the Securities in accordance with the Indenture and the sale of the
Securities pursuant to the Underwriting Agreement do not and will not
contravene any provision of the Applicable Laws or result in any
violation by the Issuer of any of the terms or provisions of the
Memorandum and Articles of Association of the Issuer or of any
indenture, mortgage or other agreement or instrument known to such
counsel, by which the Issuer is bound;
(vi) the statements in the Prospectus under "Description of
Notes" insofar as such statements constitute a summary of the
documents or proceedings referred to therein to which any of the
Applicable Laws are relevant, fairly present the information called
for with respect to such documents and proceedings;
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(vii) no stamp, registration or similar tax or fee is payable in
the Province of Nova Scotia as a prerequisite to the legality,
validity, enforceability or admissibility in evidence of the
Indenture, the Underwriting Agreement or the Securities;
(viii) the choice of New York law as the governing law of the
Indenture, the Underwriting Agreement and the Securities (except with
respect to the authorization of the execution and delivery thereof by
the Issuer, which will be governed by the laws of the Province of
Nova Scotia and the laws of Canada applicable therein) will be upheld
as a valid choice of law by a Nova Scotia court provided that (a)
such choice of law is not contrary to public policy, as that term
would be applied by a Nova Scotia court ("Public Policy"); and (b)
such choice of law is bona fide and legal (in the sense that it was
not made with a view to avoiding the consequences of the laws of any
other jurisdiction);
(ix) if any of the Indenture, the Underwriting Agreement or the
Securities is sought to be enforced in the Province of Nova Scotia in
accordance with the laws of New York, a Nova Scotia court would,
subject to paragraph (viii) hereof and to the extent specifically
pleaded and proved as a fact by expert evidence, recognize and apply
the laws of New York to all issues which, under the conflict of law
rules of the Province of Nova Scotia, are to be determined in
accordance with the proper or governing law of a contract, except
that in any such proceedings such court (a) will apply those laws of
the Province of Nova Scotia and of Canada applicable therein which it
characterizes as procedural and will not apply those laws of New York
which the court characterizes as procedural; and (b) will not apply
those laws of New York which it characterizes as of a revenue,
expropriatory, penal or similar nature or which would be contrary to
Public Policy. A Nova Scotia court, however, reserves to itself an
inherent power to decline to hear such an action if it is contrary to
Public Policy for it to do so or if it is not the proper forum to
hear such an action, or if concurrent proceedings are being brought
elsewhere; enforcement of payment obligations expressed in any
currency other than Canadian currency may be limited in that courts
in Canada may only render judgments in Canadian currency;
(x) the submission by the Issuer to the non-exclusive
jurisdiction of any United States Federal or New York state court
sitting in the Borough of Manhattan is a valid submission to the
jurisdiction of such court and would be upheld by a Nova Scotia
court; and
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(xi) the laws of the Province of Nova Scotia permit an action to
be brought in a Nova Scotia court on any final and conclusive
judgment in personam of a foreign jurisdiction, which is not
impeachable as void or voidable under the internal laws of such
foreign jurisdiction, for a sum certain if (a) the court rendering
such judgment has jurisdiction over the judgment debtor, as
recognized by the courts of the Province of Nova Scotia; (b) such
judgment was not obtained by fraud or in a manner contrary to natural
justice and the enforcement thereof would not be inconsistent with
Public Policy, or contrary to any order made by the Attorney General
of Canada under the Federal Extraterritorial Measures Act (Canada) in
respect of certain judgments under foreign antitrust laws or contrary
to any order made by the Competition Tribunal under the Competition
Act (Canada) in respect of certain judgments (as therein defined);
(c) the enforcement of such judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory or
penal laws; (d) there has been compliance with Limitation Act (Nova
Scotia) which has the effect that any action to enforce a foreign
judgment must be commenced within six years after the date of the
foreign judgment; (e) the judgment does not conflict with another
final and conclusive judgment in or relating to the same cause of
action in a different jurisdiction; (f) in the case of judgments
obtained by default, there has been no manifest error in the granting
of such judgments; and (g) the judgment has not been set aside, nor
is it for any other reason not a valid and subsisting judgment.
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EXHIBIT B
OPINION OF OSLER, XXXXXX & HARCOURT LLP
The opinion to be delivered pursuant to Article IV, paragraph (c) of
the Underwriting Agreement shall be to the effect that the statements in the
Prospectus under "Taxation - Canadian Federal Taxation" are accurate as of the
Closing Date.
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EXHIBIT C
OPINION OF XXXXXX X. XXXXXXX
The opinion of the special United States counsel to the Issuer and
counsel to the Guarantor to be delivered pursuant to Article IV, paragraph (d)
of the Underwriting Agreement shall be to the effect that:
(i) the Guarantor has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or the ownership of its property requires such
qualification;
(ii) the Indenture has been duly authorized, executed and
delivered by the Guarantor and is a valid and binding agreement of
the Issuer and the Guarantor and has been duly qualified under the
Trust Indenture Act of 1939;
(iii) when the Securities have been executed and authenticated
and the Guarantees have been executed in accordance with the
provisions of the Indenture and the Securities have been delivered to
and paid for by the Underwriters, the Securities and the Guarantees
will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Issuer and the Guarantor,
respectively;
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Guarantor;
(v) no authorization, consent or approval of, or registration or
filing with, any governmental or public body or regulatory authority
in the United States is required on the part of the Issuer or the
Guarantor for the issuance of the Securities or the Guarantees in
accordance with the Indenture or the sale of the Securities with the
Guarantees endorsed thereon in accordance with the Underwriting
Agreement, other than the registration of the Securities and the
Guarantees under the Securities Act of 1933, as amended,
qualification of the Indenture under the Trust Indenture Act of 1939,
as amended, and compliance with the securities or Blue Sky Laws of
various jurisdictions;
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(vi) the execution and delivery of the Indenture, the issuance
of the Guarantees in accordance with the Indenture and the sale of
the Securities with the Guarantees endorsed thereon pursuant to the
Underwriting Agreement, do not and will not contravene any provision
of applicable law or result in any violation by the Guarantor of any
of the terms or provisions of the Certificate of Incorporation or
By-Laws of the Guarantor or of any indenture, mortgage or other
agreement or instrument known to such counsel, by which the Guarantor
is bound;
(vii) the statements in the Prospectus under "Description of
Notes" and "Underwriting," insofar as such statements constitute a
summary of the documents or proceedings referred to therein, fairly
present the information called for with respect to such documents and
proceedings;
(viii) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Securities Exchange Act of 1934 (except as
to financial statements contained therein, as to which such counsel
need not express any opinion) and incorporated by reference in the
Prospectus complied when so filed as to form in all material respects
with such Act and the rules and regulations thereunder, (2) believes
that (except for the financial statements contained therein, as to
which such counsel need not express any belief) each part of the
Registration Statement (including documents incorporated by reference
therein), filed with the Commission pursuant to the Securities Act of
1933 relating to the Securities and the Guarantees, when such part
became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (3) is of
the opinion that the Registration Statement and Prospectus, as
amended or supplemented, if applicable (except as to financial
statements contained therein, as to which such counsel need not
express any opinion), comply as to form in all material respects with
the Securities Act of 1933 and the rules and regulations thereunder
and (4) believes that (except for the financial statements contained
therein, as to which such counsel need not express any belief) the
Registration Statement and the Prospectus on the date of the
Underwriting Agreement did not, and the Prospectus, as amended or
supplemented, if applicable, on the Closing Date does not, contain
any 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 were made, not misleading;
provided that with respect to clause (viii) above, such counsel may
state that his opinion is based upon the participation by one or more
attorneys, who are members of his staff and report to him, in the
preparation of the Registration Statement and the
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Prospectus and review and discussion of the contents thereof and upon
his general review and discussion of the answers made and information
furnished therein with such attorneys, certain officers of the Issuer
and the Guarantor and its auditors, but is without independent check
or verification except as stated therein; and
(ix) the Issuer is not an "investment company" within the
meaning of the United States Investment Company Act of 1940.
In giving the foregoing opinion, counsel may state that, to
the extent matters governed by the law of the Province of Nova Scotia or the
federal law of Canada applicable therein are involved, the opinion is given in
reliance on the opinion of Xxxxxxx XxXxxxxx Stirling Scales.
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EXHIBIT D
OPINION OF TAX COUNSEL OF,
OR TAX COUNSEL TO, THE GUARANTOR
The opinion of the Tax Counsel of, or tax counsel to, the Guarantor,
to be delivered pursuant to Article IV, paragraph (e) of the Underwriting
Agreement shall be to the effect that: the statements in the Prospectus under
"Taxation - United States Federal Income Taxation," are accurate as of the
Closing Date.
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EXHIBIT D
OPINION OF COUNSEL FOR THE UNDERWRITERS
The opinion of counsel for the Underwriters, to be delivered pursuant
to Article IV, paragraph (f) of the Underwriting Agreement shall be to the
effect that (i) the Indenture has been duly authorized, executed and delivered
by the Issuer and the Guarantor and is a valid and binding agreement of the
Issuer and the Guarantor and has been duly qualified under the Trust Indenture
Act of 1939, (ii) the Securities and the Guarantees, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters, will be valid and binding obligations of
the Issuer and the Guarantor, (iii) the Underwriting Agreement has been duly
authorized, executed and delivered by the Issuer and the Guarantor, (iv) the
statements in the Prospectus under "Description of Notes" and "Underwriting",
insofar as such statements constitute a summary of the documents or proceedings
referred to therein, fairly present the information called for with respect to
such documents and proceedings, and (v) such counsel (1) is of the opinion that
the Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements contained therein, as to which
such counsel need not express an opinion), comply as to form in all material
respects with the Securities Act of 1933 and the rules and regulations
thereunder and (2) believes that (except for the financial statements contained
therein, as to which such counsel need not express any belief) the Registration
Statement and the Prospectus on the effective date of the Registration
Statement did not, and the Prospectus, as amended or supplemented, if
applicable, on the Closing Date does not, contain any 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 were
made, not misleading; provided that such counsel may state that their opinion
and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments and supplements
thereto (other than the documents incorporated by reference therein) and review
and discussion of the contents thereof (including the documents incorporated by
reference therein), but is without independent check or verification except as
specified. Such counsel may state that to the extent that the opinion in
clauses (i), (ii) and (iii) involve matters of the law of the Province of Nova
Scotia or the federal law of Canada applicable therein they have relied on the
opinion of Xxxxxxx XxXxxxxx Stirling Scales, counsel to the Issuer.
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