Exhibit 1.3
EXECUTION COPY
CASCADES INC.
US$100,000,000
7¼% Senior Notes Due 2013
Purchase Agreement
New York, New York
June 30, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
as Representative of the Initial
Purchasers in Schedule I hereto
Ladies and Gentlemen:
Cascades Inc., a corporation
organized under the laws of the Province of Québec (the
“Company”), proposes to issue and sell to the several
parties named in Schedule I hereto (the “Initial
Purchasers”), for whom you (the
“Representatives”) are acting as representatives,
US$100,000,000 principal amount of its 7¼% Senior Notes Due
2013 (the “Notes,” and together with the Guarantees (as
defined below), the “Securities”). The Securities
are to be issued under the indenture, dated as of February 5,
2003, among the Company, the Guarantors (as defined below) and The
Bank of New York, as trustee (the “Trustee”), as
amended by the First Supplemental Indenture, dated as of May 30,
2003, among the Company, the Guarantors and the Trustee (as so
amended, the “Indenture”). The sale of the
Securities to the Initial Purchasers will be made without
registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
However, the Securities will have the benefit of a registration
rights agreement (the “Registration Rights Agreement”),
to be dated as of the Closing Date (as defined below), among the
Company, the Guarantors and the Initial Purchasers, pursuant to
which the Company and the Guarantors will agree to register a new
series of notes (the “Exchange Notes”) and related
guarantees (the “Exchange Guarantees” and, together
with the Exchange Notes, the “Exchange Securities”)
under the Act, subject to the terms and conditions specified
therein. Pursuant to the Registration Rights Agreement, the
Exchange Securities will be offered in exchange for the
Securities.
The Notes will be unconditionally
guaranteed (the “Guarantees”) by each of the
Company’s Subsidiaries that are set forth on the signature
page hereto (the “Guarantors”). To the extent
there are no additional parties listed on Schedule I other
than you, the term “Representatives” as used herein
shall mean you as the Initial Purchasers, and the terms
Representatives and Initial Purchasers shall mean either the
singular or plural as the context requires. The use of the
neuter in this Agreement shall include the feminine and masculine
wherever appropriate. Certain terms used herein are defined
in Section 22 hereof.
In connection with the sale of the
Securities, the Company has prepared an offering memorandum, dated
June 30, 2003 (as amended or supplemented at the Execution
Time, including any and all exhibits thereto, the “Offering
Memorandum”). The Offering Memorandum sets forth
certain information concerning the Company and the
Securities. The Company hereby confirms that it has
authorized the use of the Offering Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the
Securities by the Initial Purchasers.
1. Representations and
Warranties of the Company and the Guarantors . The
Company and each of the Guarantors, jointly and severally,
represent and warrant to each Initial Purchaser as set forth below
in this Section 1.
(a) At the Execution Time, the
Offering Memorandum did not, and on the Closing Date will not (and
any amendment or supplement thereto, at the date thereof, on the
Closing Date will not), contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , however ,
that neither the Company nor any of the Guarantors makes any
representation or warranty as to the information contained in or
omitted from the Offering Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of
the Initial Purchasers through the Representatives specifically for
inclusion therein. The Company and the Guarantors hereby
acknowledge that the statements set forth in the Offering
Memorandum on the front cover page in the last paragraph, and under
the heading “Plan of Distribution” the last sentence of
the third paragraph, the fifth and sixth sentences of the ninth
paragraph, the entire tenth paragraph, and the fifth and sixth
sentences of the twelfth paragraph constitute the only information
furnished to the Company in writing by or on behalf of the Initial
Purchasers for inclusion in the Offering Memorandum (or in any
amendment or supplement thereto).
(b) None of the Company, the
Guarantors or any of its or their Affiliates, nor any person acting
on its or their behalf (other than the Initial Purchasers and their
Affiliates, as to whom no representation is made) has engaged in
any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with any offer or sale of
the Securities in the United States or in any manner involving a
public offering within the meaning of Section 4(2) of the
Act.
(c) The Securities satisfy the
eligibility requirements of Rule 144A(d)(3) under the
Act.
(d) The Company is a foreign issuer
(as defined in Regulation S).
(e) None of the Company, the
Guarantors or any of its or their Affiliates, nor any Person acting
on its or their behalf (other than the Initial Purchasers and their
Affiliates, as to whom no representation is made)
has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities
under the Act or has engaged in any
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directed selling efforts with
respect to the Securities. Terms used in this paragraph have
the meanings given to them by Regulation S.
(f) The Company reasonably believes
that there is no substantial U.S. market interest (as defined in
Regulation S) in the Securities.
(g) It is not necessary in
connection with the offer, sale or delivery of the Securities to
the Initial Purchasers in the manner contemplated by the Offering
Memorandum and this Agreement to qualify the Indenture under the
Trust Indenture Act.
(h) None of the Company or the
Guarantors is, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Offering Memorandum will be, an “investment
company” within the meaning of the Investment Company Act,
without taking account of any exemption arising out of the number
of holders of the Company’s securities.
(i) None of the Company, the
Guarantors or any of its or their Affiliates, nor any person acting
on its or their behalf has paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of
the Company (except as contemplated by this Agreement and as set
forth in or contemplated in the Offering Memorandum (exclusive of
any amendment or supplement thereto)).
(j) None of the Company, the
Guarantors or any of its or their Affiliates, nor any person acting
on its or their behalf (other than the Initial Purchasers and their
Affiliates, as to whom no representation is made) has, directly or
indirectly, taken any action designed to cause or which has
constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(k) Each of the Company, its
Subsidiaries listed on Schedule II hereto (the
“Significant Subsidiaries”), the Guarantors (the
Significant Subsidiaries and the Guarantors, without duplication,
being collectively referred to as the “Material
Subsidiaries”) and the entities listed on Schedule III
hereto (the “Joint Ventures”) has been duly
incorporated and is validly existing as a corporation or
partnership in good standing, where such concept exists, under the
laws of the jurisdiction in which it is incorporated or organized
with full corporate or other power and authority to own or lease,
as the case may be, and to operate its properties and conduct its
business as described in the Offering Memorandum, and is duly
qualified to do business as a foreign corporation or partnership
and is in good standing, where such concept exists, under the laws
of each jurisdiction that requires such qualification, except where
the failure to be so qualified or in good standing would not
individually or in the aggregate have a Material Adverse
Effect.
(l) All the outstanding shares of
capital stock of each of the Company, its Material Subsidiaries and
the Joint Ventures have been duly and validly authorized and issued
and are fully paid and nonassessable where such concepts exist,
and, except as
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otherwise set forth in the Offering
Memorandum, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly-owned Subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances, except for any liens securing indebtedness to be
refinanced with the proceeds of the sale of the Securities pursuant
hereto and the Senior Credit Facility (as defined
below).
(m) The Significant Subsidiaries are
the only significant subsidiaries of the Company, as defined by
Rule l-02(w) of Regulation S-X under the Act.
(n) The Company’s authorized
equity capitalization is as set forth in the Offering
Memorandum.
(o) The Securities conform in all
material respects to the description thereof contained in the
Offering Memorandum under the heading “Description of the
Notes.”
(p) This Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors.
(q) The Indenture has been duly
authorized and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid, binding and
enforceable instrument of the Company and each of the Guarantors
(subject, as to enforcement, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity).
(r) The Securities and the Exchange
Securities have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and (in the case of the Securities) paid for by
the Initial Purchasers or (in the case of the Exchange Securities)
delivered to the holders of the Securities in exchange therefor as
contemplated by the Registration Rights Agreement, will be duly
executed and delivered by the Company and each of the Guarantors
and will constitute valid, binding and enforceable obligations of
the Company and each of the Guarantors entitled to the benefits of
the Indenture (subject, as to enforcement, to applicable
bankruptcy, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity).
(s) The Registration Rights
Agreement has been duly authorized and, when executed and delivered
by the Company and each of the Guarantors, will constitute a valid,
binding and enforceable instrument of the Company and each of the
Guarantors (subject, as to enforcement, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity).
(t) Each of the Company and the
Guarantors has all requisite corporate power and authority, and has
taken all requisite corporate action necessary to enter into and
perform this Agreement, the Indenture, the Securities, the Exchange
Securities and
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the Registration Rights
Agreement. No consent, approval, authorization, filing with
or order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the
Indenture or the Registration Rights Agreement, except, to the
extent required, (i) such as will be obtained under the Act and the
Trust Indenture Act and Canadian or provincial securities laws,
(ii) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Initial Purchasers and the distribution of
the Exchange Securities in the manner contemplated herein and in
the Offering Memorandum and the Registration Rights Agreement, and
(iii) notices that may have to be filed with appropriate Canadian
provincial securities commissions along with the Offering
Memorandum, accompanied by payment of the requisite
fees.
(u) Neither the execution and
delivery of this Agreement, the Indenture, the Registration Rights
Agreement, nor the issue and sale of the Securities or the Exchange
Securities, nor the consummation of any other of the transactions
contemplated herein or therein or in the Offering Memorandum, nor
the fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation or imposition of any lien, charge
or encumbrance upon any property or asset of the Company, any of
its Material Subsidiaries or any of the Joint Ventures pursuant to
(i) the articles of association, certificate of incorporation,
by-laws or other organizational documents of the Company, any of
its Material Subsidiaries or any of the Joint Ventures; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company, any of its
Material Subsidiaries or any of the Joint Ventures is a party or
bound or to which its or their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree
applicable to the Company, any of its Material Subsidiaries or any
of the Joint Ventures of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company, any of its Material Subsidiaries or
any of the Joint Ventures or any of its or their properties, except
in the cases of clauses (ii) and (iii) such as would not have a
Material Adverse Effect, and except to the extent that notices may
have to be filed with appropriate Canadian provincial securities
commissions along with the Offering Memorandum, accompanied by
payment of the requisite fees.
(v) The consolidated historical
financial statements and schedules of the Company and its
consolidated Subsidiaries included in the Offering Memorandum
present fairly in all material respects the financial condition,
results of operations and cash flows of the Company and its
consolidated Subsidiaries as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles in Canada (“Canadian
GAAP”) applied on a consistent basis throughout the periods
involved with a note to such financial statements reconciling them
to generally accepted accounting principles in the United States
(“US GAAP”). The historical financial information
set forth under the captions “Summary” and
“Selected Historical Financial Information” included in
the Offering Memorandum fairly present, on the basis stated in the
Offering Memorandum, the information included therein. The
financial data in the line items entitled “Pro forma interest
expense” and “Pro forma total debt” and the
related
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footnote thereto, set forth under
the caption “Summary — Summary Historical and Pro Forma
Financial Information” included in the Offering Memorandum
include assumptions that provide a reasonable basis for presenting
the significant effects directly attributable to the transactions
and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to
the historical financial statement amounts of the
Company.
(w) Except as described in the
Offering Memorandum, no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company, any of its Material Subsidiaries or any of
the Joint Ventures or its or their directors, officers or property
is pending or, to the best knowledge of the Company, threatened
that (i) would have a material adverse effect on the performance of
this Agreement, the Indenture or the Registration Rights Agreement,
or the consummation of any of the transactions contemplated hereby
or thereby, or (ii) would have a Material Adverse
Effect.
(x) Each of the Company, its
Material Subsidiaries and, to the Company’s knowledge, the
Joint Ventures has good and marketable title in fee simple to all
real property and good and marketable title to all personal
property owned by them, in each case, free and clear of all liens,
encumbrances and defects except such as are described in the
Offering Memorandum, such that do not materially affect the value
of such property and do not materially interfere with the use made
and proposed to be made of such property by the Company and its
Material Subsidiaries. All assets held under lease by the
Company and its Subsidiaries are held by them under valid and
enforceable leases, with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
assets by the Company and its Material Subsidiaries.
(y) Set forth in Schedule IV
hereto is a list of all contracts, indentures, mortgages, deeds or
trusts, loan or credit agreements, notes, leases or other
agreements or instruments to which the Company, any of its
Subsidiaries or any of the Joint Ventures is a party or bound or to
which its property is subject, that are material to the Company and
its Subsidiaries, taken as a whole.
(z) Neither the Company nor any of
its Material Subsidiaries nor, to the Company’s knowledge,
any of the Joint Ventures is in violation or default of (i) any
provision of its articles of association, certificate of
incorporation, by-laws or other organizational documents; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company, any of its
Material Subsidiaries, or any of the Joint Ventures is a party or
bound or to which its or their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company,
any of its Material Subsidiaries, or any of the Joint Ventures or
any of its or their properties, as applicable, except, in the cases
of clauses (ii) and (iii), such as would not have a Material
Adverse Effect.
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(aa) PricewaterhouseCoopers LLP, who
have certified certain consolidated financial statements of the
Company and delivered their report with respect to such audited
consolidated financial statements included in the Offering
Memorandum, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(bb) There are no stamp or other
issuance or transfer taxes or duties or other similar fees or
charges required to be paid in connection with the execution,
delivery and performance of this Agreement or the Indenture by the
Company or the Guarantors or the issuance or sale of the Securities
or the Exchange Securities by the Company or the
Guarantors.
(cc) All interest, principal,
premium (if any) and other payments due or made on the Securities
or the Exchange Securities may be paid by the Company to each
holder thereof in U.S. dollars that may be freely transferred out
of Canada, and, except for payments made to a holder with which the
Company does not deal at arm’s length (within the meaning of
the Income Tax Act (Canada)) at the time the payment is
made, all such payments made to holders who are non-residents of
Canada will not be subject to income, withholding or other taxes
under laws and regulations of Canada or any political subdivision
or taxing authority thereof or therein and will otherwise be free
and clear of any other tax, duty, withholding or deduction in
Canada or any political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any governmental
authorization in Canada or any political subdivision or taxing
authority thereof or therein.
(dd) The Company has filed all
foreign, federal, provincial, state and local tax returns that are
required to be filed or has requested extensions thereof, except in
any case in which the failure so to file would not have a Material
Adverse Effect, and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested
in good faith or as would not have a Material Adverse
Effect.
(ee) Since the date of the most
recent financial statements included in the Offering Memorandum
(exclusive of any amendment or supplement thereto), there has been
no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(ff) No labor problem or dispute
with the employees of the Company, any of its Material Subsidiaries
or any of the Joint Ventures exists, except as set forth in or
contemplated in the Offering Memorandum (exclusive of any amendment
or supplement thereto), or, to the knowledge of the Company, is
threatened or imminent; there are no amounts owing or promised by
the Company, any of its Material Subsidiaries or, to the
Company’s knowledge, any of the Joint Ventures to any present
or former directors or
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employees of the Company, any of its
Material Subsidiaries or, to the Company’s knowledge, any of
the Joint Ventures, except as set forth in or contemplated in the
Offering Memorandum (exclusive of any amendment or supplement
thereto); and no individuals named in the Offering Memorandum under
the caption “Management” have given or been given
notice terminating their contracts of employment, except such as
would not have a Material Adverse Effect;
(gg) Each of the Company, its
Material Subsidiaries and, to the Company’s knowledge, the
Joint Ventures is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; and neither the Company nor any of its Material
Subsidiaries nor, to the Company’s knowledge, any of the
Joint Ventures has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a Material Adverse Effect.
(hh) Except as described in or
contemplated by the Offering Memorandum, no Material Subsidiary of
the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company or any other Subsidiary, from
making any other distribution on such Subsidiary’s capital
stock, from repaying to the Company or any other Subsidiary any
loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to
the Company or any other Subsidiary, except that no representation
is made regarding prohibitions imposed by laws and regulations
applicable to companies organized outside Canada and the United
States.
(ii) Each of the Company, its
Material Subsidiaries and, to the Company’s knowledge, the
Joint Ventures possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, provincial,
state or foreign regulatory authorities necessary to conduct their
respective businesses, except such as would not have a Material
Adverse Effect; and neither the Company nor any of its Subsidiaries
nor, to the Company’s knowledge, any of the Joint Ventures
has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit
which, singly or in the aggregate, would likely result in an
unfavorable decision, ruling or finding or would have a Material
Adverse Effect.
(jj) Each of the Company, its
Material Subsidiaries and, to the Company’s knowledge, the
Joint Ventures maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with Canadian GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(kk) To the best knowledge of the
Company, each of the Company, its Material Subsidiaries and the
Joint Ventures (i) is in compliance with any and all
applicable U.S., Canadian, foreign, federal, provincial, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental
Laws”); (ii) has received and is in compliance with all
permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its businesses; and
(iii) has not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, except, in each ease, where such failure would not,
individually or in the aggregate, have a Material Adverse Effect;
except as set forth in the Offering Memorandum, neither the Company
nor any of the Material Subsidiaries nor, to the Company’s
knowledge, any of the Joint Ventures has been named as a
“potentially responsible party” under the U.S.
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
(ll) In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(mm) The Company, its Material
Subsidiaries and, to the Company’s knowledge, the Joint
Ventures own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Company’s business as now conducted or as proposed in the
Offering Memorandum to be conducted, except where the failure to
own, possess, license or have other rights to use such Intellectual
Property would not have a Material Adverse Effect. There is
no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or
scope of any of the Intellectual Property, and the Company is
unaware of any facts that would form a reasonable basis for any
such claim. There is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
that the Company or any of its Material Subsidiaries infringes or
otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others, and the Company is unaware
of any other fact that would form a reasonable basis for any such
claim.
(nn) Each of the Company, its
Material Subsidiaries and, to the Company’s knowledge, the
Joint Ventures has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the United States
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published
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interpretations thereunder with
respect to each “plan” (as defined in Section 3(3)
of ERISA and such regulations and published interpretations) in
which employees of the Company, its Material Subsidiaries and the
Joint Ventures are eligible to participate, and each such plan is
in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations, except for such failures as would not have a
Material Adverse Effect. Neither the Company, nor any of its
Material Subsidiaries, nor, to the Company’s knowledge, any
of the Joint Ventures has incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV
of ERISA or to any other pension plan on an ongoing or termination
basis, except for such failures as would not have a Material
Adverse Effect.
(oo) Immediately after the
consummation of the transactions contemplated hereby and by the
Offering Memorandum, the fair value and present fair saleable value
of the assets of each of the Company and of the Guarantors will
exceed the sum of its stated liabilities and identified contingent
liabilities. Neither the Company nor any of the Guarantors
is, nor will the Company or any of the Guarantors be, after giving
effect to the execution, delivery and performance of this
Agreement, the Indenture, the Securities and the Registration
Rights Agreement and the consummation of any other of the
transactions contemplated herein or therein or in the Offering
Memorandum, (A) left with unreasonably small capital with which to
carry on its business as it is proposed to be conducted, (B) unable
to pay its debts (contingent or otherwise) as they mature or (C)
otherwise insolvent.
(pp) The Company has no reason to
believe that the statistical and market-related data included in
the Offering Memorandum are based on or derived from sources that
are not reliable and accurate.
(qq) Each of the relationships and
transactions specified in Item 404 of Regulation S-K that would
have been required to be described in a prospectus if this offering
had been registered under the Act has been so described in the
Offering Memorandum (exclusive of any amendment or supplement
thereto).
(rr) Except for the Guarantors, the
Company has no Subsidiaries organized under the laws of Canada, any
province thereof, or any state of the United States.
Any certificate signed by any
officer of the Company or any Guarantor and delivered to the
Representatives or counsel for the Initial Purchasers in connection
with the offering of the Securities shall be deemed a
representation and warranty by the Company or such Guarantor, as to
matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale
. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company
and the Guarantors agree to sell to each Initial Purchaser, and
each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company and the Guarantors, at an aggregate
purchase price of 106.58125% of the principal amount thereof, the
principal amount of Securities set forth opposite such Initial
Purchaser’s name in Schedule I hereto. The parties
understand that this aggregate purchase price
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consists of a base purchase price for the
Securities of 103.5% of the principal amount thereof, plus accrued
interest of 3.08125% from February 5, 2003 to the Closing
Date.
3. Delivery and Payment
. Delivery of and payment for the Securities shall be made no
later than 10:00 A.M., New York City time, on July 8, 2003, or
at such time on such later date as the Representatives shall
designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in
Section 9 hereof (such date and time o
