Exhibit 99.1
NORANDA INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
June 2, 2005
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
BNP Paribas Securities Corp.
Comerica Securities, Inc.
Fifth Third Securities, Inc.
SG Americas Securities LLC
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Noranda Inc., a corporation organized under the laws of Ontario,
Canada (the "Company") proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement Standard Provisions, dated June 2,
2005 (the "Standard Provisions"), to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). A copy of the Standard
Provisions is set forth in Schedule III hereto. Each of the provisions of
the Standard Provisions is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Underwriting Agreement
to the same extent as if such provisions had been set forth in full herein;
and each of the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Underwriting
Agreement. Each reference to the Representatives herein and in the Standard
Provisions so incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the Standard Provisions
are used herein as therein defined. The Representatives designated to act
on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Standard
Provisions and the address of the Representatives referred to in such
Section 12 are set forth at the end of Schedule II hereto.
A supplement to the Shelf Prospectus relating to the Designated
Securities, substantially in the form heretofore delivered to you, is now
proposed to be filed with the OSC, and a supplement to the Prospectus
relating to the Designated Securities, substantially in the form heretofore
delivered to you, is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us ten counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement among each of the
Underwriters and the Company.
Very truly yours,
Noranda Inc.
By:/s/ M.R. Frilegh
--------------------------------
Name: Michael Frilegh
Title: Vice-President, Treasurer
By:/s/ D. Pannell
--------------------------------
Name: Derek Pannell
Title: CEO
The foregoing is hereby confirmed and
accepted as of the date hereof:
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
HSBC Securities (USA) Inc.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
BNP Paribas Securities Corp.
Comerica Securities, Inc.
Fifth Third Securities, Inc.
SG Americas Securities LLC
By: /s/ Nigel W.H. Cree
--------------------------------
Deutche Bank Securities Inc.
On behalf of itself and as representative
of the several Underwriters
Name: Nigel W.H. Cree
Title: Managing Director/Debt Syndicate
By: /s/ Matthew J. Siracuse
--------------------------------
Deutche Bank Securities Inc.
On behalf of itself and as representative
of the several Underwriters
Name: Matthew J. Slracuse
Title: Director/Debt Syndicate
SCHEDULE I
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
2017 NOTES 2035 NOTES
-------------------- --------------------
UNDERWRITER
Deutsche Bank Securities Inc............... US$100,000,000 US$100,000,000
Citigroup Global Markets Inc............... 22,500,000 22,500,000
HSBC Securities (USA) Inc.................. 22,500,000 22,500,000
J.P. Morgan Securities Inc................. 22,500,000 22,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................... 22,500,000 22,500,000
Barclays Capital Inc....................... 10,000,000 10,000,000
BNP Paribas Securities Corp................ 10,000,000 10,000,000
Comerica Securities, Inc................... 10,000,000 10,000,000
Fifth Third Securities, Inc................ 10,000,000 10,000,000
SG Americas Securities LLC................. 10,000,000 10,000,000
Sun Trust Capital Markets Inc. ............ 10,000,000 10,000,000
-------------------- --------------------
Total:............................. US$250,000,000 US$250,000,000
==================== ====================
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
5.5% Notes due June 15, 2017 (the "2017 notes")
6.2% Notes due June 15, 2035 (the "2035 notes")
AGGREGATE PRINCIPAL AMOUNT:
US$250,000,000 of 2017 notes
US$250,000,000 of 2035 notes
PRICE TO PUBLIC:
99.72% of the principal amount of the 2017 notes, plus accrued
interest, if any, from June 8, 2005
99.471% of the principal amount of the 2035 notes, plus accrued
interest, if any, from June 8, 2005
PURCHASE PRICE BY UNDERWRITERS:
99.045% of the principal amount of the 2017 notes, plus accrued
interest, if any, from June 8, 2005
98.596% of the principal amount of the 2035 notes, plus accrued
interest, if any, from June 8, 2005
UNDERWRITING COMMISSION (INCLUDING AGGREGATE DOLLAR AMOUNT):
0.675% of the principal amount of the 2017 notes (US$1,687,500)
0.875% of the principal amount of the 2035 notes (US$2,187,500)
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Same day funds, to be paid by wire transfer, net of commission, to the
Company
INDENTURE:
Indenture dated as of July 1, 1992 as supplemented by the First
Supplemental Indenture, dated as of July 15, 1992, the Second
Supplemental Indenture, dated as of June 1, 1993, the Third
Supplemental Indenture, dated as of August 18, 1993, the Fourth
Supplemental Indenture, dated as of June 16, 1994, the Fifth
Supplemental Indenture, dated as of July 17, 1995, the Sixth
Supplemental Indenture, dated as of February 13, 2001 and the Seventh
Supplemental Indenture dated as of February 21, 2001, each made
between the Company, as issuer, and Montreal Trust Company of Canada,
as trustee, and the Eighth Supplemental Indenture dated as of June 24,
2002 and the Ninth Supplemental Indenture dated as of September 29,
2003, and the Tenth Supplemental Indenture to be dated as of June 8,
2005, each made between the Company, as issuer, and Computershare
Trust Company of Canada, as successor trustee (the "Indenture").
MATURITY: June 15, 2017 for the 2017 notes
June 15, 2035 for the 2035 notes
INTEREST RATE: 5.5% for the 2017 notes
6.2% for the 2035 notes
INTEREST PAYMENT DATES:
December 15 and June 15 commencing on December 15, 2005 for the 2017
notes
December 15 and June 15 commencing on December 15, 2005 for the 2035 notes
REDEMPTION PROVISIONS:
The Designated Securities are redeemable in whole or in part at any
time, at a redemption price equal to the greater of (1) 100% of the
principal amount of the notes, and (2) the sum of the present values
of the remaining scheduled payments of principal and interest on the
notes (exclusive of interest accrued to the date of redemption)
discounted to the redemption date, calculated on a semi-annual basis
(assuming a 360-day year of twelve 30-day months), at the Treasury
Rate (as defined in the Prospectus) plus 25 basis points per 2017 note
or 30 basis points per 2035 note, as applicable, together in each case
with accrued interest to the date of redemption.
SINKING FUND PROVISIONS:
No sinking fund provisions.
MANNER OF DELIVERY OF DESIGNATED SECURITIES:
Registered Global Securities
TIME OF DELIVERY:
8:30 a.m. (New York City time), June 8, 2005
CLOSING LOCATION:
McCarthy Tetrault LLP
4700 Torotonto Dominion Bank Tower
Toronto Dominion Centre
Toronto, Ontario
M5K 1E6
OTHER PROVISIONS:
The commercial (printed) copies of the Prospectus as amended or
supplemented in relation to the Designated Securities requested by the
Underwriters shall be made available to the Underwriters in New York,
New York no later than 10:00 a.m. on the second business day next
succeeding the date of the Underwriting Agreement.
NAMES AND ADDRESSES OF DESIGNATED REPRESENTATIVES:
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
SCHEDULE III
NORANDA INC.
DEBT SECURITIES
---------------
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
-------------------
June 2, 2005
From time to time Noranda Inc., a corporation organized under the
laws of Ontario (the "Company"), may enter into one or more underwriting
agreements ("Underwriting Agreements"), and, subject to the terms and
conditions stated or provided for therein, issue and sell to the firms
named as underwriters in the applicable Underwriting Agreement (such firms
constituting the "Underwriters" with respect to such Underwriting Agreement
and the securities specified therein) certain of its debt securities (the
"Securities") specified in such Underwriting Agreement (with respect to
such Underwriting Agreement, the "Designated Securities"). The standard
provisions set forth herein may be incorporated by reference in any
Underwriting Agreement and each reference herein to the Underwriting
Agreement shall refer to the Underwriting Agreement with respect to a
particular issuance and sale of Designated Securities.
The terms and rights of the Designated Securities shall be as
specified in the Underwriting Agreement and in or pursuant to the
indenture, including any supplements thereto (the "Indenture"), identified
in the Underwriting Agreement.
1. The Underwriting Agreement shall specify the firms designated as
representatives (the "Representatives") of the Underwriters of the
Designated Securities. The term "Representatives" also refers to a single
firm acting as sole representative of the Underwriters and to Underwriters
who act without any firm being designated as their representative. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Underwriting Agreement with respect to the
Designated Securities specified therein. The Underwriting Agreement shall
specify the aggregate principal amount of the Designated Securities, the
initial public offering price of the Designated Securities, the purchase
price to be paid to the Company by the Underwriters for the Designated
Securities, the commission to be paid by the Company to the Underwriters
with respect to the sale of the Designated Securities, the names of the
Underwriters of the Designated Securities, the names of the Representatives
of such Underwriters and the principal amount of the Designated Securities
to be purchased by each Underwriter and shall set forth the date, time and
manner of delivery of the Designated Securities and payment therefor. The
Underwriting Agreement shall also specify (to the extent not set forth in
the Indenture and the registration statement and prospectus with respect
thereto) the terms of the Designated Securities, shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under the Underwriting Agreement shall
be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) The Company meets the requirements under the Securities Act
(Ontario) and the rules and regulations adopted thereunder, as
amended, and the published policy statements of the Ontario Securities
Commission (the "OSC"), including National Instruments 44-101 and
44-102 of the Canadian Securities Administrators, together with their
respective Companion Policies (collectively, the "OSA"), for use of a
short form shelf prospectus with respect to the Securities, has filed
with the OSC a preliminary short form shelf prospectus and a short
form shelf prospectus with respect to the Securities, and has been
issued a receipt by the OSC for such short form shelf prospectus and
any amendment thereto in the form heretofore delivered, along with any
documents (including any preliminary form of prospectus supplement)
filed in connection therewith and all documents incorporated by
reference therein, to the Representatives for each of the
Underwriters; no other document with respect to such short form shelf
prospectus, amendment thereto, or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
OSC; and no order having the effect of preventing or suspending the
use of any prospectus relating to the Securities has been issued and
no proceeding for that purpose has been initiated or, to the knowledge
of the Company, threatened by the OSC (such short form shelf
prospectus, including any amendments to the form of prospectus
receipted by the OSC, is hereinafter called the "Shelf Prospectus";
and any reference to the Shelf Prospectus as amended or supplemented
shall be deemed to refer to the Shelf Prospectus as amended or
supplemented in relation to the Designated Securities in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of filing of such amendment or
supplement);
(b) The Company meets the eligibility requirements for use of
Form F-9 ("Form F-9") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Securities and has filed a
registration statement on Form F-9, including the short form shelf
prospectus receipted by the OSC and modified as required or permitted
by Form F-9 (File No. 333-125431), with respect to the Securities and
an appointment of agent for service of process upon the Company on
Form F-X (the "Form F-X") with the Securities and Exchange Commission
(the "Commission"); such registration statement (including any
pre-effective amendment thereto) and any post-effective amendment
thereto (each in the form heretofore delivered to the Representatives
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other Underwriters)
have been declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission, except for any documents
filed with the Commission subsequent to the date of such effectiveness
in the form heretofore delivered to the Representatives for each of
the Underwriters; and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (any preliminary prospectus (including
any supplement thereto) included in such registration statement being
hereinafter called a "Preliminary Prospectus"); the various parts of
such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, and including any amendment or supplement
to the Shelf Prospectus that is deemed by the OSA to be incorporated
by reference into the Shelf Prospectus as of the date of such
amendment or supplement prepared and filed with the OSC in accordance
with the OSA, being hereinafter called the "Registration Statement";
the prospectus relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of the Underwriting Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the OSA or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as the case may
be, and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the Designated Securities in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of filing of such
amendment or supplement;
(c) The Prospectus consists of, and the Prospectus as amended or
supplemented will consist of, the Shelf Prospectus and the Shelf
Prospectus as amended or supplemented, respectively, except in each
case for modifications required or permitted by Form F-9 and the
applicable rules and regulations of the Commission;
(d) The documents incorporated by reference in the Prospectus,
when they were filed with the OSC, complied in all material respects
with the applicable requirements of the OSA, and none of such
documents, as of their respective issue dates, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents are filed with the OSC and
the Commission will comply in all material respects with the
applicable requirements of the OSA, and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(e) No order preventing or suspending the use of any Preliminary
Prospectus or preliminary prospectus supplement has been issued by the
Commission, and each Preliminary Prospectus and preliminary prospectus
supplement did not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
(f) The Shelf Prospectus conforms, and any further amendments or
supplements to the Shelf Prospectus will conform, in all material
respects, with the applicable requirements of the OSA and do not and
will not, as of their respective filing dates, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of an Underwriter of Designated Securities through the
Representatives expressly for use in the Shelf Prospectus as amended
or supplemented relating to such Securities;
(g) The Registration Statement, the Prospectus and the Form F-X
conform, and any further amendments thereto will conform, in all
material respects, with the applicable requirements of the Securities
Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as
of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading, and (ii) in the case of the
Prospectus, in light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(h) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which loss or
interference is materially adverse to the Company and its
subsidiaries, on a consolidated basis, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented; and, since
the respective dates as of which information is given in the
Registration Statement and the Prospectus and, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented,
there has not been any change in the capital stock of the Company
(other than pursuant to stock dividends, conversions of securities,
employee stock options and other employee benefit plans and agreements
described or referred to in the Prospectus as amended or
supplemented), any increase in the long-term debt of the Company and
its subsidiaries on a consolidated basis, except as provided for in
the Underwriting Agreement, or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position or results of operations of the Company
and its subsidiaries, which change is (or, in the case of prospective
changes, will be) materially adverse to the Company and its
subsidiaries on a consolidated basis;
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the Province of Ontario
and is current with respect to the filing of annual returns with the
Minister of Consumer and Business Services for the Province of
Ontario, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(j) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, together with an unlimited
number of junior preference shares issuable in series;
(k) The Securities have been duly authorized, and, when the
Designated Securities are issued and delivered pursuant to the
Underwriting Agreement, the Designated Securities will have been duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, which will be substantially in the
form, save for any indenture supplements relating to a particular
issuance of Designated Securities, filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, at the Time of
Delivery (as defined in Section 4 hereof) for the Designated
Securities, the Indenture will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, in all
material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented;
(l) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, the Underwriting Agreement, and the
consummation of the transactions therein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the articles or by-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body ("Governmental Agency") having jurisdiction over the
Company or any of its properties; and no consent, approval,
authorization, order, registration, clearance or qualification
("Governmental Authorization") of or with any such Governmental Agency
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by the
Underwriting Agreement or the Indenture, except such as have been, or
will have been prior to the Time of Delivery, obtained under the OSA,
the Securities Act and the Trust Indenture Act and such Governmental
Authorizations as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(m) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and in the Prospectus as amended or
supplemented under the caption "Description of the Notes", insofar as
they purport to constitute a summary of the terms of the Securities
and the Designated Securities, respectively, and under the captions
"Plan of Distribution" in the Prospectus and "Underwriting" in the
Prospectus as amended or supplemented, insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are fair summaries of the matters referred to therein;
(n) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or by-laws. Neither the
Company nor any of its subsidiaries is in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except such violations
or defaults which the Company has reasonable cause to believe would
not individually or in the aggregate have a material adverse effect on
the consolidated financial position, shareholders' equity or results
of operation of the Company and its subsidiaries on a consolidated
basis;
(o) Other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which the Company has reasonable cause to believe would individually
or in the aggregate have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries on a consolidated basis; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(p) The Company is not and, after giving effect to the offering
and sale of the Designated Securities, will not be an "investment
company," as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(q) No withholding tax imposed under the federal laws of Canada
will be payable in respect of the commission or fee to be paid by the
Company pursuant to the Underwriting Agreement to any Underwriter who
is not resident in Canada and with whom the Company deals at arm's
length, provided that such commission or fee is reasonable in the
circumstances and is payable in respect of identifiable services
rendered by such Underwriter outside of Canada and which are performed
by such Underwriter in the ordinary course of a business carried on by
it that includes the performance of such a service for a commission or
fee;
(r) The Company maintains disclosure controls and procedures as
required by Rule 13a-15 or Rule 15d-15 under the Exchange Act and as
contemplated by the certifications required under Form 52-109F1 and
Form 52-109F2 under Multilateral Instrument 52-109 - Certification of
Disclosures in Issuer's Annual and Interim Filings, and such controls
and procedures are effective to ensure that all material information
concerning the Company is made known, on a timely basis, to the
individuals responsible for the preparation of the Company's filings
with the Commission and the OSC. The Company has disclosed to is
auditors and the audit committee of its board of directors (a) all
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting (as such term
is defined by Rules 13a-15(f) and 15d-15(f) under the Exchange Act
and, in Canada, under 52-109) which are reasonably likely to adversely
affect the Company's ability to record, process, summarize and report
financial information and (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in
the Company's internal controls over financial reporting;
(s) The Company maintains systems of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(t) The Company has complied in all material respects with the
applicable provisions of the Sarbanes-Oxley Act of 2002 and the
corporate governance rules of the New York Stock Exchange;
(u) Neither the sale of the Designated Securities by the Company
hereunder nor the use of proceeds thereof will cause any U.S. person
participating in the offering, either as underwriter and/or purchaser
of the Designated Securities, to violate the regulations of the United
States Treasury Department set forth under 31 CFR, Subtitle B, Chapter
V, as amended, or any enabling legislation or executive order relating
thereto; and
(v) Ernst & Young, chartered accountants, who have certified
certain financial statements of the Company and its subsidiaries are
independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder.
3. (a) Upon the execution of the Underwriting Agreement and
authorization by the Representatives of the release of the Designated
Securities, the several Underwriters propose to offer the Designated
Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
(b) Each Underwriter represents that it has not offered or sold,
directly or indirectly, and agrees that it will not, directly or
indirectly, offer, sell or deliver any of the Designated Securities
purchased by it under the Underwriting Agreement, in Canada or to any
resident of Canada, in contravention of the securities laws of any
province or territory of Canada. Each Underwriter further agrees that
it will include a comparable provision in any sub-underwriting,
banking group or selling group agreement or similar arrangement with
respect to the Designated Securities that may be entered into by such
Underwriter.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Underwriting Agreement, in definitive form to the extent practicable
(except as otherwise provided in the Underwriting Agreement) and in such
authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice
to the Company, and payment of the aggregate underwriting commission in
respect of the Designated Securities set forth in the Underwriting
Agreement, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price for such Designated
Securities set forth in the Underwriting Agreement, each such payment to be
made in the manner and in the funds specified in the Underwriting
Agreement, all at the place and time and date specified in the Underwriting
Agreement or in such other manner and funds and at such other place and
time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for
such Designated Securities.
5. The Company agrees with each of the Underwriters of the Designated
Securities:
(a) To prepare a supplement to the Shelf Prospectus in accordance
with the requirements of the OSA, and a supplement to the Prospectus
consisting of the supplement to the Shelf Prospectus modified as
required or permitted by Form F-9, in each case in a form approved by
the Representatives (which approval shall not be unreasonably
withheld), and (i) to file such supplement to the Shelf Prospectus
with the OSC pursuant to the OSA not later than the OSC's close of
business on the second business day following the execution and
delivery of the Underwriting Agreement or, if applicable, such earlier
time as may be required by the OSA, and (ii) to file such supplement
to the Prospectus with the Commission pursuant to General Instruction
II.K. of Form F-9 not later than the Commission's close of business on
the next business day following such filing with the OSC or, if
applicable, such earlier time as may be required by such General
Instruction II.K. or the OSA; to make no further amendment or
supplement to the Shelf Prospectus, the Registration Statement or the
Prospectus after the date of the Underwriting Agreement and prior to
the Time of Delivery unless such amendment or supplement is approved
by the Representatives after reasonable notice thereof (which approval
shall not be unreasonably withheld); to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file
promptly with the OSC all documents required to be filed by the
Company with the OSC that are deemed to be incorporated by reference
into the Shelf Prospectus and with the Commission all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act, in each case, for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Shelf Prospectus or Registration Statement has been
filed or becomes effective or any supplement to the Shelf Prospectus,
the Prospectus or any amended Prospectus has been filed with the OSC
or the Commission, of the issuance by the OSC or the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the OSC or the Commission for
the amending or supplementing of the Shelf Prospectus, the
Registration Statement or the Prospectus or for additional information
relating to the Securities, the Shelf Prospectus, the Registration
Statement or the Prospectus; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction, (ii) file any general
consent to service of process or (iii) subject itself to taxation in
any jurisdiction if it is not so subject;
(c) To furnish the Underwriters in New York City with copies of
each Registration Statement (two of which will be signed and will
include all exhibits, including signed copies of all consents and
certificates of experts) to the extent not otherwise available on
EDGAR, as well as copies of the Prospectus as amended or supplemented
in such reasonable quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus is
required by law at any time in connection with the offering or sale of
the Designated Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to
amend or supplement the Shelf Prospectus or the Prospectus or to file
under the OSA or the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the OSA, the
Securities Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their reasonable request to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with
Section 11 (a) of the Securities Act and the rules and regulations of
the Commission thereunder (including, at the option of the Company,
Rule 158 thereunder); and
(e) During the period beginning from the date of the Underwriting
Agreement and continuing to and including the Time of Delivery for the
Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature
more than one year after such Time of Delivery and which are
substantially similar to the Designated Securities, without the prior
written consent of the Representatives, such consent not to be
unreasonably withheld.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the filing with respect to the Securities under the OSA,
the registration of the Securities under the Securities Act, any listing of
the Designated Securities on a stock exchange or automated quotation
system, and all other expenses in connection with the preparation, printing
and filing in Ontario and the United States of America, as may be
applicable, of the Registration Statement, any Preliminary Prospectus and
the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) subject
to such limitation as may be set forth in the Underwriting Agreement, the
cost of printing or producing any Agreement among Underwriters, these
Standard Provisions, the Underwriting Agreement, any Indenture, any Blue
Sky and Legal Investment Memoranda; (iii) subject to such limitation as may
be set forth in the Underwriting Agreement, all reasonable expenses in
connection with the qualification of the Designated Securities for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the reasonable fees and disbursements of
counsel for any Trustee in connection with any Indenture and the
Securities; and (viii) all other costs and expenses incident to the
performance of its obligations pursuant to the Underwriting Agreement which
are not otherwise specifically provided for in this Section. It is
understood, however, that, except as otherwise specifically provided in
this Section, Section 8 and Section 11 hereof, the Underwriters will pay
all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make, including the
expenses of any "tombstone" advertisement related to the offering of the
Designated Securities; provided, that no such tombstone advertisement shall
be published without the prior approval of the Company, which approval
shall not be unreasonably withheld.
7. The obligations of the Underwriters of the Designated Securities
under the Underwriting Agreement shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties
and other statements of the Company in or incorporated by reference in the
Underwriting Agreement are, at and as of the Time of Delivery, true and
correct, the condition that the Company shall have performed all of its
obligations pursuant to the Underwriting Agreement theretofore to be
performed, and the following additional conditions:
(a) The supplement to the Shelf Prospectus shall have been filed
with the OSC pursuant to the applicable rules and regulations of the
OSA within the applicable time period prescribed for such filing
thereunder and the supplement to the Prospectus shall have been filed
with the Commission pursuant to General Instruction II.K. of Form F-9
within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and, in each case, in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or, to the knowledge of the Company, threatened by the
Commission; no order having the effect of preventing or suspending the
use of any prospectus relating to the Securities shall have been
issued and no proceeding for that purpose shall have been initiated
or, to the knowledge of the Company, threatened by the OSC; and all
requests for additional information on the part of each of the OSC and
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery
for the Designated Securities, with respect to the validity of the
Indenture, the Designated Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters (it being understood that, to
the extent such opinion relates to the laws of Ontario and the federal
laws of Canada applicable therein, such counsel shall be entitled to
rely on the opinion of Canadian counsel to the Company delivered
pursuant to Section 7(c) hereof);
(c) The Company shall have furnished to the Representatives the
written opinion of McCarthy Tetrault LLP, Canadian counsel for the
Company (or other Canadian counsel for the Company reasonably
satisfactory to the Representatives), dated the Time of Delivery for
the Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the laws of the Province of Ontario, with full
corporate power and authority to own its properties and conduct
its business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus or in such opinion;
(iii) To the best of such counsel's knowledge, based solely
upon documents provided to such counsel by the Company and
conferences with the Company in connection with the offering of
the Securities, and other than as set forth or contemplated in
the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which are of a
character required by the OSA to be described or referred to in
the Prospectus or a supplement thereto, and no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(iv) The Underwriting Agreement has been duly authorized
and, to the extent that execution and delivery are governed by
the laws of Ontario, executed and delivered by the Company;
(v) The Designated Securities have been duly authorized,
authenticated and issued pursuant to the Indenture and, to the
extent that execution and delivery are matters governed by the
laws of Ontario, executed and delivered by the Company; and the
Designated Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus as amended
or supplemented;
(vi) The Indenture has been duly authorized and, to the
extent that execution and delivery are matters governed by the
laws of the province of Ontario, executed and delivered by the
Company;
(vii) The issue and sale of the Designated Securities and
the performance by the Company of its obligations under each of
the Designated Securities, the Indenture and the Underwriting
Agreement and the consummation of the transactions therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel
(except any conflict, breach or violation not readily
ascertainable from the face of any such indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument or
arising under or based upon any cross default provision insofar
as it relates to an indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument not known to such
counsel), based solely upon documents provided to such counsel by
the Company and conferences with the Company in connection with
the offering of the Securities, to which the Company is a party
or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such actions result
in any violation of the provisions of the articles or by-laws of
the Company, or any statute or any rule or regulation or, to the
best of such counsel's knowledge, without having made any special
inquiries in that regard, any order of any Ontario or Canadian
federal court or any Ontario or Canadian federal Governmental
Agency having jurisdiction over the Company or any of its
properties;
(viii) No consent, approval, authorization, order,
registration, clearance or qualification of or with any such
Ontario or Canadian federal court or Governmental Agency is
required for the issue and sale of the Designated Securities or
the consummation by the Company of the other transactions
contemplated by the Underwriting Agreement or the Indenture,
except such as have been obtained;
(ix) The Prospectus has been duly approved by, or under the
authority of, the Board of Directors of the Company, and the
Shelf Prospectus and each amendment thereto has been duly
executed on behalf of the Company in accordance with the OSA;
(x) The documents incorporated by reference in the Shelf
Prospectus, each as amended or supplemented (other than the
financial statements and related schedules and other financial
information contained therein, as to which counsel need express
no opinion), as of their respective issue dates and the dates
they were filed with the OSC, complied as to form in all material
respects with the applicable requirements of the OSA;
(xi) The Prospectus, as amended or supplemented, together
with a certificate of the Underwriters, a certificate of the
Company, a section entitled "Purchasers' Statutory Rights" and
disclosure of certain underwriting conflicts, and a dated front
cover page containing mandated legends, as would be required
under the OSA, would be the entire disclosure document required
to offer the Designated Securities if the offering and
distribution of the Designated Securities were being qualified
and made in the Province of Ontario, the principal jurisdiction
of Canada designated by the Company in connection with the
offering of the Designated Securities; the exhibits to the
Registration Statement included or incorporated by reference in
the Prospectus and the documents incorporated by reference in the
Prospectus as amended or supplemented, include the only reports
or information (other than the Shelf Prospectus) that in
accordance with the requirements of Ontario law would be required
to be made publicly available by the OSC if the offering of the
Designated Securities were being made in the Province of Ontario;
and the Prospectus, as amended or supplemented, complies as to
form in all material respects with the applicable requirements of
the OSA as interpreted and applied by the Reviewing Authority,
except that the Prospectus, as amended or supplemented, excludes
a certificate of the Underwriters, a certificate of the Company,
a section entitled "Purchasers' Statutory Rights" and a dated
cover page containing mandated legends, as would be required
under the OSA;
(xii) The Company has received an appropriate receipt from
the OSC for the Shelf Prospectus and any amendments thereto filed
under the OSA prior to the Time of Delivery; to the best
knowledge of such counsel without having made any special
enquiry, no order having the effect of ceasing or suspending the
distribution of the Designated Securities has been issued and no
proceeding for that purpose has been initiated or threatened by
the OSC;
(xiii) The statements as to Canadian taxation set forth in
the Prospectus as amended or supplemented under the caption
"Certain Income Tax Considerations - Canada" insofar as such
statements constitute a summary of the Canadian legal matters,
documents or proceedings referred to therein are a fair summary
of the principal Canadian federal income tax considerations to
prospective purchasers who are described under such heading;
(xiv) No withholding tax imposed under the federal laws of
Canada will be payable in respect of the commission or fee to be
paid by the Company pursuant to the Underwriting Agreement to any
Underwriter who is not resident in Canada and with whom the
Company deals at arm's length, provided that such commission or
fee is reasonable in the circumstances and is payable in respect
of identifiable services rendered by such Underwriter outside of
Canada and which are performed by such Underwriter in the
ordinary course of a business carried on by it that includes the
performance of such a service for a commission or fee;
(xv) A court of competent jurisdiction in the Province of
Ontario (a "Canadian Court") would give effect to the choice of
the law of the State of New York ("New York law") as the proper
law governing the enforcement of the Indenture, the Designated
Securities and the Underwriting Agreement, provided that such
choice of law is bona fide (in the sense that it was not made
with a view to avoiding the consequences of the laws of any other
jurisdiction) and legal and provided that such choice of law is
not contrary to public policy, as that term is understood under
the laws of the Province of Ontario and the federal laws of
Canada applicable therein and in such counsel's opinion the
choice of New York law is not contrary to public policy, as that
term is understood under the laws in the Province of Ontario and
the federal laws of Canada applicable therein;
(xvi) In an action on a final and conclusive judgment in
personam of any federal or state court sitting in the Borough of
Manhattan, The City of New York, New York (a "New York Court")
that is not impeachable as void or voidable under New York law, a
Canadian Court would give effect to the appointment by the
Company of CT Corporation System as its agent for service in the
United States of America under the Indenture, the Designated
Securities and the Underwriting Agreement and to the provisions
in the Indenture, and the Underwriting Agreement whereby the
Company has submitted to the non-exclusive jurisdiction of a New
York Court;
(xvii) If the Indenture, the Designated Securities or the
Underwriting Agreement are sought to be enforced in the Province
of Ontario in accordance with the laws applicable thereto as
chosen by the parties, namely New York law, a Canadian Court
would, subject to paragraph (xv) above, recognize the choice of
New York law, and, upon appropriate evidence as to such law being
specifically pleaded and proved, apply such law to all issues
that, under the conflict of law rules of the Province of Ontario,
are to be determined in accordance with the proper or governing
law of a contract, provided that such court will not apply (i)
those laws of New York which it characterizes as being of a
revenue, expropriatory, penal or public law nature, or (ii) those
laws of New York, the application of which would be contrary to
public policy, as that term is understood under the laws of the
Province of Ontario and the federal laws of Canada applicable
therein; provided, however, that, in matters of procedure, the
laws of the Province of Ontario will be applied, and a Canadian
Court will retain discretion to decline to hear such action if it
is contrary to public policy, as that term is understood under
the laws of the Province of Ontario and the federal laws of
Canada applicable therein, for such court to do so, or if such
court is not the proper forum to hear such an action or if
concurrent proceedings are being brought elsewhere and in such
counsel's opinion none of the provisions of the Indenture, the
Designated Securities or the Underwriting Agreement are contrary
to public policy, as that term is understood under the laws of
the Province of Ontario and the federal laws of Canada applicable
therein; and
(xviii) The laws of the Province of Ontario permit an action
to be brought in a Canadian Court to enforce a final and
conclusive judgment in personam of a New York Court respecting
the enforcement of the Indenture, the Designated Securities and
the Underwriting Agreement that is not impeachable as void or
voidable under New York law for a sum certain if: (A) the court
rendering such judgment properly exercised jurisdiction over the
judgment debtor as recognized by the courts of the Province of
Ontario (and submission by the Company to the jurisdiction of the
New York Court pursuant to the Indenture and the Underwriting
Agreement will be sufficient for this purpose); (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, as such term is understood under the laws of
the Province of Ontario and the federal laws of Canada applicable
therein or contrary to any order made by the Attorney General of
Canada under the Foreign Extraterritorial Measures Act (Canada)
or by the Competition Tribunal under the Competition Act
(Canada); (C) a dispute between the same parties based on the
same subject matter has not given rise to a decision rendered by
a court in the Province of Ontario or been decided by a foreign
authority and the decision meets the necessary conditions for
recognition under the laws of the Province of Ontario; (D) no new
admissible evidence relevant to the action is discovered prior to
the rendering of judgment by the Canadian Court; (E) in the case
of a judgment obtained by default, there has been no manifest
error in the granting of such judgment; (F) the enforcement of
such judgment does not constitute, directly or indirectly, the
enforcement of foreign revenue, expropriatory, penal or public
laws; (G) interest on the Notes is not characterized by the
Canadian Court as interest payable at a criminal rate within the
meaning of Section 347 of the Criminal Code (Canada); and (H) the
action to enforce such judgment is commenced within the relevant
limitation period prescribed under the laws of the Province of
Ontario, except that, under the Currency Act (Canada), a Canadian
Court may only give judgment in Canadian dollars; and in such
counsel's opinion a Canadian Court should not avoid the
enforcement of judgments of a New York Court respecting the
enforcement of the Indenture and the Underwriting Agreement on
the basis of a reasonable interpretation of public policy, as
that term is understood under the laws of the Province of Ontario
and the federal laws of Canada applicable therein.
Such counsel shall state that it has participated in discussions with
representatives of the Company, the Representatives, United States
counsel to the Company, representatives of the independent auditors of
the Company, and counsel for the Underwriters at which the contents of
the Registration Statement and the Prospectus were reviewed and
discussed and, although such counsel has not verified and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or any amendment
thereto, or the Prospectus or any amendment thereto or supplement
thereof, except as expressly stated in such counsel's opinion pursuant
to the requirements of this Section 7(c), such counsel has no reason
to believe that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related reports thereon or schedules and other
financial information contained therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made,
not misleading or that, as of the Time of Delivery, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related reports thereon or schedules and
other financial information contained therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances in which they were made, not misleading;
Such Canadian counsel may limit their opinion to the laws of Ontario
and the federal laws of Canada applicable therein and, to the extent
such opinion relates to the laws of the United States or the State of
New York, may rely exclusively upon the opinion of United States
counsel to the Company delivered pursuant to Section 7(d) hereof.
(d) The Company shall have furnished to the Representatives the
written opinion of Fried, Frank, Harris, Shriver & Jacobson LLP,
United States counsel for the Company (or other United States counsel
reasonably satisfactory to the Representatives), dated the Time of
Delivery for the Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Assuming the compliance of the Prospectus and the
Prospectus as amended or supplemented, including the documents
incorporated by reference therein, with the requirements of the
securities laws, rules and regulations of the Province of Ontario
as interpreted and applied by the OSC, and other requirements of
Canadian law, in such counsel's opinion, the Registration
Statement and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Company
prior to the Time of Delivery for the Designated Securities,
(other than the financial statements, notes or schedules and
other financial or accounting data included therein or omitted
therefrom, as to which such counsel need express no opinion)
appear on their face to be appropriately responsive as to form in
all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission
thereunder.
(ii) Assuming the due authorization, execution and delivery
of the Underwriting Agreement under Canadian federal and Ontario
law, the Underwriting Agreement (to the extent that execution and
delivery are governed by the laws of the State of New York) has
been executed and delivered by the Company;
(iii) Assuming the due authorization, execution, issuance
and delivery of the Designated Securities by the Company under
Canadian federal and Ontario law, and assuming the Designated
Securities have been authenticated by the Trustee, the Designated
Securities (to the extent execution, issuance and delivery are
governed by the laws of the State of New York) have been duly
executed, authenticated, issued and delivered and constitute
valid and binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefits provided by the Indenture (a) subject to (1) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and
other similar laws affecting creditors' rights and remedies
generally and (2) general principles of equity, including,
without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to
the availability of equitable remedies, whether such principles
are considered in a proceeding at law or in equity and (b) except
such counsel need express no opinion as to Section 1.17 of the
Indenture providing for the Company's indemnity against loss in
connection with obtaining a court judgment in another currency;
and the statements in the Prospectus, as amended or supplemented,
under the captions "Description of the Notes" and "Description of
Debt Securities", insofar as they purport to describe the
provisions of the documents referred to therein, fairly summarize
the matters referred to therein.;
(iv) Assuming the due authorization, execution and delivery
of the base indenture and the first, second, third, fourth,
fifth, sixth, seventh and eighth supplements thereto, all of
which form a part of the Indenture, by the Company under all
relevant Canadian federal and Ontario law and New York law, and
assuming the due authorization, delivery and execution of the
ninth supplement to the base indenture, which also form a part of
the Indenture, under all relevant Canadian federal and Ontario
law, and assuming the due authorization, execution and delivery
of the Indenture by the Trustee, the ninth supplement to the base
indenture (to the extent execution and delivery are governed by
the laws of the State of New York) has been duly executed and
delivered by the Company, and the Indenture constitutes a valid
and binding obligation of the Company, enforceable in accordance
with its terms (a) subject to (1) applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar
laws affecting creditors' rights and remedies generally and (2)
general principles of equity, including, without limitation,
standards of materiality, good faith, fair dealing and
reasonableness, equitable defenses and limits as to the
availability of equitable remedies, whether such principles are
considered in a proceeding at law or in equity and (b) except
such counsel need express no opinion as to Section 1.17 of the
Indenture providing for the Company's indemnity against loss in
connection with obtaining a court judgment in another currency;
and the Indenture has been qualified under the Trust Indenture
Act;
(v) No consent, approval, authorization, order, registration
or qualification of or with any court or Governmental Agency or
body of the United States is required on the part of the Company
for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by
the Underwriting Agreement or the Indenture, except such as have
been obtained under the Securities Act and the Trust Indenture
Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters or
by the National Association of Securities Dealer's, Inc. in
connection therewith;
(vi) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the Investment Company Act.
(vii) The statements set forth in the Prospectus as amended
or supplemented under the caption "Certain Income Tax
Considerations - United States", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, fairly summarize the matters referred to therein; and
(viii) Such counsel shall set forth in the body of such
counsel's opinion letter statements to the effect that (A) the
Registration Statement is effective under the Securities Act; (B)
the Form F-X was filed by the Company with the Commission prior
to the effectiveness of the Registration Statement; (C) any
required filing of the Prospectus or any supplement thereto was
made in accordance with General Instruction II.K. of Form F-9;
and (D) such counsel was informed telephonically by a member of
the staff of the Commission at the Time of Delivery that there
are no stop orders suspending the effectiveness of the
Registration Statement.
Such United States counsel may limit their opinion to the laws of the
United States of America and the laws of the State of New York
applicable therein and, to the extent such opinion relates to the
federal and provincial laws of Canada, may rely upon the opinion of
Canadian counsel to the Company delivered pursuant to Section 7(c)
hereof;
(e) On the date of the Underwriting Agreement and at the
Time of Delivery for the Designated Securities, Ernst & Young,
chartered accountants, shall have furnished to the
Representatives a letter, dated the date of delivery of such
letter to the effect set forth in Annex I hereto, and with
respect to such letter dated such Time of Delivery, as to such
other matters of the type ordinarily included in "comfort
letters" from accountants to underwriters as the Representatives
may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the most recent audited
consolidated financial statements included or incorporated by
reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus and, otherwise than as set
forth or contemplated in the Prospectus as amended or
supplemented, there shall not have been any change in the capital
stock of the Company (other than pursuant to stock dividends,
conversions of securities, employee stock options and other
employee benefit plans and agreements described or referred to in
the Prospectus as amended or supplemented), any increase in the
long-term debt of the Company and its subsidiaries on a
consolidated basis, except as provided for in the Underwriting
Agreement, or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position or results of operations of the
Company and its subsidiaries on a consolidated basis, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in
Clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse to the Company and its
subsidiaries on a consolidated basis as to materially adversely
affect the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(g) On or after the date of the Underwriting Agreement and
at or prior to the Time of Delivery (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by
Moody's Investors Service, Inc., Standard & Poor's Ratings Group,
a division of McGraw Hill Inc., Canadian Bond Rating Services,
Inc. or Dominion Bond Rating Service Limited, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(h) On or after the date of the Underwriting Agreement and
at or prior to the Time of Delivery there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or
the Toronto Stock Exchange or a suspension or material limitation
in trading in the Company's securities on the Toronto Stock
Exchange; (ii) a general moratorium on commercial banking
activities in (1) New York declared by either Federal or New York
State authorities, or (2) Toronto declared by either federal or
provincial authorities; or (iii) the outbreak or escalation of
hostilities or the declaration by Canada or the United States of
a national emergency or war or any other calamity or crisis, if
the effect on the financial markets in the United States of
America or Canada of any such event specified in this clause
(iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities; and
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers
of the Company reasonably satisfactory to the Representatives as
to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations pursuant to
the Underwriting Agreement to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a)
and (f) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Securities;
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Underwriter through the
Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
may elect by written notice delivered to such indemnified party
promptly after receiving the aforesaid notice from the indemnified
party, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such
Underwriters on the other in connection with the offering of the
Designated Securities to which such losses, claims, damages or
liabilities relate shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters
on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Designated Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations
of the Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Securities
Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of
the Securities Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the
Underwriting Agreement, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives
to purchase such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used herein and in the Underwriting Agreement
shall include any person substituted under this Section with like effect as
if such person had originally been a party to the Underwriting Agreement.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under
the Underwriting Agreement and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Designated Securities which such Underwriter
agreed to purchase under the Underwriting Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased exceeds one-eleventh
of the aggregate principal amount of the Designated Securities, as
referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Underwriting
Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in these Standard Provisions or made by or on
behalf of them, respectively, pursuant to the Underwriting Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If the Underwriting Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter except as provided in Section 6 and Section 8 hereof; but, if
the Underwriting Agreement shall be terminated by the Underwriters or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Company shall be unable to
perform its obligations under the Underwriting Agreement, the Company will
reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of
the Designated Securities, but the Company shall then be under no further
liability to any Underwriter except as provided in Section 6 and Section 8
hereof.
12. In all dealings pursuant to the Underwriting Agreement, the
Representatives shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
the Representatives jointly or by such of the Representatives, if any, as
may be designated for such purpose in the Underwriting Agreement.
All statements, requests, notices and agreements pursuant to the
Underwriting Agreement shall be in writing, and if to the Underwriters
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Representatives as set forth in the Underwriting Agreement;
and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. The Underwriting Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of the Underwriting Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
14. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person
who controls any Underwriter arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in any New York
Court, (ii) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
such proceeding and (iii) submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. The Company has appointed CT
Corporation System, New York, New York, as its authorized agent (the
"Authorized Agent") upon whom process may be served in any such action
arising out of or based on this Agreement or the transactions contemplated
hereby which may be instituted in any New York Court by any Underwriter or
by any person who controls any Underwriter, expressly consents to the
jurisdiction of any such court in respect of any such action, and waives
any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. The Company
represents and warrants that the Authorized Agent has agreed to act as such
agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice
of such service to the Company shall be deemed, in every respect, effective
service of process upon the Company.
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment
currency") other than United States dollars, the Company will indemnify
each Underwriter against any loss incurred by such Underwriter as a result
of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which an
Underwriter is able to purchase United States dollars with the amount of
judgment currency actually received by such Underwriter. The foregoing
indemnity shall constitute a separate and independent obligation of the
Company and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall
include any premiums and costs of exchange payable in connection with the
purchase of or conversion into United States dollars.
16. Time shall be of the essence of the Underwriting Agreement. As
used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business; provided that, with respect to
filings to be made with the OSC, "business day" shall mean any day when the
OSC's office in Toronto is open for business.
17. The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. The Underwriting Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of
which, when so executed and delivered, shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the
same instrument.
ANNEX I
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are the auditors of the Company and are independent
as required by the OSA and the applicable rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited by them
and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the OSA
and the related published rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting
an audit in accordance with Canadian generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited interim and year-end consolidated
statement of financial position and the consolidated
statements of earnings, and changes in financial position
included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the OSA and the
applicable rules and regulations thereunder or are not
presented, in all material respects, in accordance with
Canadian generally accepted accounting principles applied on
a basis substantially consistent with the basis for the
audited consolidated balance sheets and the consolidated
statements of earnings and retained earnings, and changes in
financial position included in the Company's Annual
Information Form for the most recent fiscal year, or (ii)
any material modifications should be made to the unaudited
interim or year-end consolidated statement of financial
position and the consolidated statements of earnings, and
changes in financial position included or incorporated by
reference in the Prospectus for them to be in conformity
with Canadian generally accepted accounting principles;
(B) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock or in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or net assets or stockholders' equity or other items
specified by the representatives of the Underwriters (the
"Representatives"), or any increases in any items specified
by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(C) for the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
Clause (B) there were any decreases in consolidated net
revenues or operating profit or in the total or per share
amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared
with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraph (iii) above, they have
carried out certain specified procedures, not constituting an
audit in accordance with Canadian generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which
appear in the Prospectus or in documents incorporated by
reference in the Prospectus, and have compared certain of such
amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have
found them to be in agreement.
All references in this Annex I to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Underwriting Agreement
for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such
Designated Securities.