Exhibit 1.1
EXECUTION COPY
DOMTAR CORPORATION
as Issuer
and Certain of its
Subsidiaries,
as Guarantors
$400,000,000
10.75% Senior Notes due 2017
Underwriting
Agreement
June 3, 2009
J.P. Morgan Securities
Inc.
Morgan Stanley & Co.
Incorporated
As Representatives of the several
Underwriters listed in Schedule 1
hereto
c/o J. P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Domtar Corporation, a Delaware
corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), $400,000,000
principal amount of its 10.75% Senior Notes due 2017 (the
“Securities”) to be guaranteed (collectively, the
“Guarantees”) by the subsidiary guarantors listed on
Schedule 2 hereto (collectively, the “Guarantors”). The
Securities will be issued pursuant to an Indenture, dated as of
November 19, 2007 (as supplemented as of the date hereof, the
“Base Indenture”) among the Company, the Guarantors
party thereto and The Bank of New York Mellon, as trustee (the
“Trustee”), as further supplemented by a Supplemental
Indenture, to be dated as of June 9, 2009 (the
“Supplemental Indenture” and, together with the Base
Indenture, the “Indenture”) between the Company, the
Guarantors party thereto and the Trustee.
Each of the Company and the
Guarantors hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Securities, as
follows:
1. Registration Statement .
The Company and the Guarantors have prepared and filed with the
Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Securities Act”), a registration statement on Form S-3
(File No. 333-159690), including a prospectus, relating to the
Securities. Such registration statement as of the Effective Date
(as
defined below), including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time
of the Effective Date (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and
as used herein the term “Effective Date” means the
effective date of the Registration Statement pursuant to Rule 430B
under the Securities Act for purposes of liability under
Section 11 of the Securities Act of the Company or the
Underwriters with respect to the offering of the Securities; and
the term “Preliminary Prospectus” means the prospectus
included in the Registration Statement at the time of the Effective
Date that omits Rule 430 Information and any prospectus made
available prior to the Time of Sale, and the term
“Prospectus” means the prospectus in the form first
used (or made available upon request of purchasers pursuant to Rule
173 under the Securities Act) in connection with confirmation of
sales of the Securities which shall be in the form in which it has
most recently been filed with the Commission pursuant to Rule
424(b) as of the date of such first use or availability. Any
reference in this Agreement to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of
such Preliminary Prospectus or the Prospectus, as the case may be,
and any reference to “amend”, “amendment”
or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Exchange Act”) that are deemed to be incorporated by
reference therein after such date. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Prospectus.
As of 5:00 p.m. New York City time
(the “Time of Sale”), the Company had prepared the
following information (collectively, the “Time of Sale
Information”): a Preliminary Prospectus dated June 3,
2009, including all documents incorporated therein by reference,
whether any such incorporated document is filed before or after the
Preliminary Prospectus, so long as the incorporated document is
filed before the Time of Sale, the Pricing Term Sheet substantially
in the form of Annex C hereto, and each other “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex C hereto as constituting part of
the Time of Sale Information.
2. Purchase of the Securities by
the Underwriters . (a) The Company agrees to issue and
sell the Securities to the several Underwriters as provided in this
Agreement and the Guarantors agree to guarantee the Securities
pursuant to the terms of the Indenture, and each Underwriter, on
the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to
94.157% of the principal amount thereof plus accrued interest, if
any, from June 9, 2009 to the Closing Date (as defined below).
The Company will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as
provided herein.
(b) Each of the Company and the
Guarantors understand that the Underwriters intend to make a public
offering of the Securities as soon after the effectiveness of this
Agreement as in
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the judgment of the Representatives is
advisable, and initially to offer the Securities on the terms set
forth in the Prospectus. Each of the Company and the Guarantors
acknowledge and agree that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that
any such affiliate may offer and sell Securities purchased by it to
or through any Underwriter.
(c) Payment for and delivery of the
Securities will be made at the offices of Simpson
Thacher & Bartlett LLP, at 10:00 A.M., New York City time,
on June 9, 2009, or at such other time or place on the same or
such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to
herein as the “Closing Date”.
(d) Payment for the Securities shall
be made by wire transfer in immediately available funds to the
account(s) specified by the Company to the Representatives against
delivery to the nominee of The Depository Trust Company, for the
account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global
Note”), with any transfer taxes payable in connection with
the sale of the Securities duly paid by the Company. The Global
Note will be made available for inspection by the Representatives
on the business day prior to the Closing Date.
(e) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representatives nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and Warranties
of the Company and the Guarantors . Each of the Company and the
Guarantors jointly and severally represent and warrant to each
Underwriter that:
(a) Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the Securities Act and did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that neither the
Company nor any Guarantor makes any representation and warranty
with respect to any statements or omissions made in reliance upon
and in conformity with information relating to any
Underwriter
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furnished to the Company or the Guarantors in
writing by such Underwriter through the Representatives expressly
for use in any Preliminary Prospectus.
(b) Time of Sale Information.
The Time of Sale Information at the Time of Sale did not, and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
neither the Company nor any of the Guarantor makes any
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company or the
Guarantors in writing by such Underwriter through the
Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has
been omitted therefrom.
(c) Issuer Free Writing
Prospectus. Each of the Company and the Guarantors (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not used, authorized, approved or
referred to and will not use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i),
(ii) or (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Annex C hereto as constituting
the Time of Sale Information and (v) any electronic road show
or other written communications, in each case approved in writing
in advance by the Representatives. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities
Act, has been or will be (within the time period specified in Rule
433) filed in accordance with the Securities Act (to the extent
required thereby) and, when taken together with the Preliminary
Prospectus and any free writing prospectus (as described below)
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that neither the Company nor any
Guarantor makes any representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company or the
Guarantors in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing
Prospectus.
(d) Registration Statement. A
registration statement on Form S-3 (File No. 333-159690)
relating to the Securities, including a form of prospectus, has
been filed with the Commission under the Securities Act and such
registration statement, and any post-effective amendment
thereto, automatically became effective on filing under the
Securities Act and is not proposed to be amended in connection with
the issuance and sale of the Securities pursuant to this Agreement.
No notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company and no order suspending the effectiveness
of
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the Registration Statement has been issued by
the Commission and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or the
Guarantors or related to the offering has been initiated or, to the
knowledge of the Company or the Guarantors, threatened by the
Commission; the Registration Statement as of the Effective Date
complied, and any amendment thereto as of the date it becomes
effective will comply, in all material respects with the Securities
Act, and the Registration Statement as of the Effective Date did
not and any amendment thereto as of the date it becomes effective
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and the
Prospectus as of its date did not and any amendment or supplement
thereto and as of the Closing Date, the Prospectus will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that neither
the Company nor any Guarantor makes any representation and warranty
with respect to (i) that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act or
(ii) any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company or the Guarantors in writing by such Underwriter
through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement
thereto.
(e) Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when
they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, of 1934, as
amended, and the rules and regulation of the Commission thereunder
(collectively, the “Exchange Act”) and none of such
documents, at its time of filing with the Commision, contained any
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, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Financial Statements. The
financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, together with the related
schedules and notes, comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act,
as applicable, and present fairly the financial position of the
Company and its subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for
the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles
applied, except as stated
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therein, on a consistent basis throughout the
periods covered thereby, and the supporting schedules, if any,
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and
the other financial information included or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting
records of the Company and its subsidiaries and presents fairly the
information shown thereby.
(g) The statements in the Time of
Sale Information and the Prospectus under the headings
“Certain material U.S. federal income tax consequences”
and “Description of the notes,” insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or
proceedings.
(h) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included in the Registration Statement, the Time of
Sale Information and the Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries, except for the 1-for-12 reverse stock split announced
on June 1, 2009, or any 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, or any development involving a prospective
Material Adverse Effect, otherwise than as set forth or
contemplated in the Registration Statement, the Time of Sale
Information and the Prospectus; except as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus since such date neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company
and its subsidiaries taken as a whole.
(i) Organization and Good
Standing. The Company, each Guarantor and each other subsidiary
of the Company that meets the definition of a “significant
subsidiary” as defined in Rule 1-02 of Regulation S-X under
the Securities Act of 1933, as amended, (i) has been duly
incorporated or formed, is validly existing as a corporation,
limited liability company or limited partnership, as applicable,
and is in good standing under the laws of the jurisdiction of its
incorporation or formation with full corporate, limited liability
company or limited partnership, as applicable, power and authority
to own or lease, as the case may be, and to operate its properties
and conduct its business and (ii) is duly qualified to do
business as a foreign entity or an extra provincial corporation, as
applicable, and is in good standing under the laws of each
jurisdiction which requires such qualification, other than, with
respect to clause (ii), where the failure to be so qualified or in
good standing would not have a material adverse effect on 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 or on the performance of the Company of its
obligations under the Securities (a “Material Adverse
Effect”). The subsidiaries listed in Schedule 3 to this
Agreement are the only significant subsidiaries of the
Company.
(j) Capitalization. The
Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Capitalization” and all
the outstanding shares of capital stock or other equity interests
of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully
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paid and non-assessable and 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, other than where such
security interests, claims, liens or encumbrances would not have a
Material Adverse Effect.
(k) Due Authorization. The
Company has full right, power and authority to execute and deliver
the Securities, and the Company and each of the Guarantors have
full right, power and authority to execute and deliver this
Agreement and the Indenture (including the Guarantees)
(collectively, together with the Securities, the “Transaction
Documents”) and to perform their respective obligations
hereunder and thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery of each of
the Transaction Documents to which the Company and each of the
Guarantors is a party and the due and proper authorization and
consummation of the transactions contemplated thereby has been duly
and validly taken.
(l) The Indenture. Each of
the Base Indenture and the Supplemental Indenture has been duly
authorized by the Company and the Base Indenture has been validly
executed and delivered by the Company. Each of the Guarantors has
validly executed and delivered either the Base Indenture or a
supplemental indenture by which it has become a party to the Base
Indenture and has duly authorized the Base Indenture or such
supplemental indenture, as applicable, and the Supplemental
Indenture. As of the Closing Date, the Supplemental Indenture will
have been validly executed and delivered by the Company and each of
the Guarantors. When the Supplemental Indenture has been duly
executed and delivered by the Company and each of the Guarantors,
and, assuming that the Base Indenture and the Supplemental
Indenture are each a valid and binding obligation of the Trustee,
the Base Indenture is and the Supplemental Indenture will be, a
valid and binding agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance
with its terms except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability (collectively, the
“Enforceability Exceptions”).
(m) The Securities. The
Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company
in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
(n) Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors.
(o) The Guarantees. The
Guarantees have been duly authorized by each of the Guarantors and
are in the form contemplated by, and entitled to the benefits of,
the Indenture and, when the Securities have been executed,
authenticated, issued and delivered in the manner provided in the
Indenture and delivered against payment of the purchase price for
the Securities as provided in this Agreement, will constitute valid
and binding obligations of each of the Guarantors, enforceable
against each of the Guarantors in accordance with their terms,
subject to the Enforceability Exceptions.
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(p) Descriptions of the
Transaction Documents. Each Transaction Document conforms in
all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(q) No Violation or Default.
Neither the Company nor any Significant Subsidiary is, or with the
giving of notice or lapse of time or both would be, in violation or
default of (i) any provision of its charter or by-laws or
other constituting 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 it is a party or bound or to which its 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 or such subsidiary
or any of its or their properties, as applicable, which violation
or default would, in the case of clauses (ii) and
(iii) above, either individually or in the aggregate with all
other violations and defaults referred to in this paragraph (if
any), have a Material Adverse Effect.
(r) No Conflicts . The
execution, delivery and performance by the Company and each of the
Guarantors of each of the Transaction Documents to which it is a
party, the issuance and sale of the Securities and compliance by
the Company and each of the Guarantors, as applicable, with the
terms thereof and the consummation of the transactions contemplated
by the Transaction Documents will not (i) conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
indenture, note, mortgage, deed of trust, loan or credit 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, (ii) result
in any violation of the provisions of the charter or by-laws or
similar organizational documents of the Company or any of its
subsidiaries or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of the
Commission or any other agency having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or
assets, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material
Adverse Effect.
(s) No Consents Required. No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company or the Guarantors of each of the
Transaction Documents to which it is a party, the issuance and sale
of the Securities by the Company and compliance by the Company with
the terms thereof, the issue of the Guarantees by the Guarantors
and compliance by the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents, except such as have been made or obtained under the
Securities Act and the Trust Indenture Act, as may be required by
the Financial Industry Regulatory Authority, Inc. in connection
with the registration of the Securities and the Guarantees, and
such consents, approvals, authorizations, orders and registrations
or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of
the Securities by the Underwriters.
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(t) Legal Proceedings. No
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries, its property or property of its
subsidiaries is pending or, to the knowledge of the Company,
threatened that (i) is of a character required to be disclosed
in the Registration Statement, the Time of Sale Information and the
Prospectus, (ii) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
Indenture by the Company or the Guarantors or the consummation of
any of the transactions contemplated hereby, (iii) could
reasonably be expected to have a material adverse effect on each of
the Company’s and the Guarantors’ ability to enter into
and perform its obligations under the Supplemental Indentures or
(iv) could reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(u) Independent Accountants.
PricewaterhouseCoopers LLP and KPMG LLP, who have certified certain
financial statements of the Company and its subsidiaries, are each
an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the
Securities Act.
(v) Title to Real and Personal
Property. The Company and its subsidiaries own or lease all
such properties as are necessary to the conduct of the operations
of the Company and its subsidiaries taken as a whole as presently
conducted and as described in the Registration Statement, the Time
of Sale Information and the Prospectus.
(w) Judicial Immunity. None
of the Company’s subsidiaries nor any of its or their
properties or assets has any immunity from the jurisdiction of any
court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or
otherwise) under the federal laws of Canada or the laws of the
Province of Québec.
(x) Defects in Title. The
Company is not aware of any defects in title to its material
properties or its material assets and facilities which are used in
the production and marketing of pulp and paper, lumber and wood
products and corrugated products that would, singly or in the
aggregate, have a Material Adverse Effect.
(y) Title to Intellectual
Property. The Company and its subsidiaries own, possess, are
licensed to use or have other sufficient legal rights to use 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 presently conducted and as described in the in the
Registration Statement, the Time of Sale Information and the
Prospectus. Except as set forth in or contemplated in the in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) there are no rights of third parties to any
such Intellectual Property owned by the Company and its
subsidiaries; (ii) to the knowledge of the Company, there is
no material infringement by third parties of any such Intellectual
Property owned by the Company and its subsidiaries;
(iii) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others challenging
the Company’s
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rights in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending
or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others challenging the validity or scope of
any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; and
(v) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any Intellectual Property
or other proprietary rights of others, and the Company is unaware
of any other fact which would form a reasonable basis for any such
claim.
(z) Investment Company Act.
Neither the Company nor any Guarantor is and, after giving effect
to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Registration Statement,
the Time of Sale Information and the Prospectus, will be an
“investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, “Investment Company Act”).
(aa) No stamp duty. No stamp
duty, registration or documentary taxes, duties or similar charges
imposed under the laws of the United States or Canada are payable
in connection with the creation or original issuance and sale of
the Securities, (ii) with respect to the execution, delivery
and performance of this Agreement or the Supplemental Indenture or
(iii) with respect to any payments made to the Underwriters
pursuant to this Agreement.
(bb) Taxes. The Company has
filed all U.S. and foreign federal, state, provincial, territorial
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),
except as otherwise disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus 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, except as set forth in the Registration
Statement, the Time of Sale Information and the
Prospectus.
(cc) Licenses and Permits.
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state, provincial or foreign regulatory
authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary 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, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth
in or contemplated in the Registration Statement, the Time of Sale
Information and the Prospectus.
(dd) No Labor Disputes.
Except as set forth in or contemplated in the Registration
Statement, the Time of Sale Information and the Prospectus, no
labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent, and the Company is not aware of any
existing or imminent labor dispute
10
by the employees of any of its subsidiaries, or
to the knowledge of the Company, its subsidiaries’ principal
suppliers, contractors or customers, that could have a Material
Adverse Effect.
(ee) Compliance With
Environmental Laws. The Company and its subsidiaries
(i) are in compliance with any and all applicable foreign,
Canadian federal, provincial and local, and U.S. federal, 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) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses as presently conducted and as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, and (iii) except as set forth in or contemplated
in the Registration Statement, the Time of Sale Information and the
Prospectus, have 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 where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth in
the Registration Statement, the Time of Sale Information and the
Prospectus, neither the Company nor any of its subsidiaries has
been named as a “potentially responsible party” under
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, except in instances where
(A) the Company has made adequate provision for such event in
the reserves on its balance sheet or (B) being so named would
not, individually or in the aggregate, have a Material Adverse
Effect.
(ff) Environmental Reviews.
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
