Exhibit 1.4
EXECUTION COPY
CASCADES INC.
US$125,000,000
7¼% Senior Notes Due 2013
Purchase Agreement
New York, New York
November 23, 2004
CIBC World Markets Corp.
425 Lexington Avenue, 3 rd
Floor
New York, New York 10017
Scotia Capital (USA) Inc.
1 Liberty Plaza, 25 th
Floor
New York, NY 10016
as Representatives 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$125,000,000 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, the
Second Supplemental Indenture, dated as of December 30, 2003, the
Third Supplemental Indenture, dated as of March 16, 2004, the
Fourth Supplemental Indenture, dated as of July 8, 2004, and the
Fifth Supplemental Indenture, dated as of August 26, 2004, each
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
November 23, 2004 (as amended or supplemented at the Execution
Time, including the documents incorporated therein by reference and
any and all exhibits thereto and together with the Canadian
offering memorandum dated November 23, 2004, 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 in the first sentence of the last paragraph of the
legends, and under the heading “Plan of Distribution”
the entire third paragraph, the fourth and fifth sentences of the
ninth paragraph, the entire tenth paragraph, and the fifth and
sixth sentences of the eleventh 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). The documents
incorporated by reference into the Offering Memorandum, when they
were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and the rules and
regulations of the commission thereunder.
(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.
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(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 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) The Indenture has been duly
qualified 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
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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 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 it was duly authorized, executed and
delivered 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
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(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 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 Canadian federal 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 have been or
may have to be filed with appropriate Canadian provincial
securities commissions in connection with sales in Canadian
jurisdictions 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 incorporated by reference into 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
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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 item entitled “Pro forma interest
expense” and the related 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,
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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.
(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
incorporated by reference into 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 incorporated
by reference into 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
7
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 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.
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(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.
(kk)
No holder of securities of the Company or any Subsidiary will be
entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the
Registration Rights Agreement other than as expressly permitted
thereby.
(ll)
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.
(mm) 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.
(nn)
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
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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.
(oo)
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 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.
(pp)
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.
(qq)
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.
(rr)
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).
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(ss)
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.
(tt)
There is, and has been, no failure on the part of the Company or
its Subsidiaries, or any of their directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes
Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith as applicable to the Company and its
Subsidiaries.
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 105.6549% 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 aggre
