Exhibit 1.1
IPSCO INC.
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$200,000,000 8 3/4% Senior Notes due 2013
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PURCHASE AGREEMENT
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June 13, 2003
UBS SECURITIES LLC
RBC DOMINION SECURITIES CORPORATION
ABN AMRO INCORPORATED
CIBC WORLD MARKETS CORP.
TD SECURITIES (USA) INC.
▇▇▇▇▇ FARGO SECURITIES, LLC
c/o UBS SECURITIES LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
IPSCO Inc., a Canadian corporation (the "Company"), and each of the
Guarantors (as defined herein), agree with you as follows:
1. Issuance of Notes. The Company proposes to issue and sell to UBS
Securities LLC, RBC Dominion Securities Corporation, ABN AMRO Incorporated, CIBC
World Markets Corp., TD Securities (USA) Inc. and ▇▇▇▇▇ Fargo Securities LLC
(the "Initial Purchasers") $200,000,000 aggregate principal amount of 8 3/4%
Senior Notes due 2013 (the "Original Notes"). The Original Notes will be issued
pursuant to an indenture (the "Indenture"), to be dated the Closing Date (as
defined herein), by and among the Company, the Guarantors and ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"). The Company's obligations under the
Original Notes will be unconditionally guaranteed (the "Guarantees") on an
unsecured senior basis by the guarantors listed on Schedule I hereto
(collectively, the "Guarantors" and, together with the Company, the "Issuers").
All references herein to the Original Notes include the related Guarantees,
unless the context otherwise requires. Capitalized terms used but not otherwise
defined herein shall have the meanings given to such terms in the Indenture.
The Original Notes will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended (the "Act"). The Issuers have prepared a preliminary
offering memorandum, dated May 30, 2003 (including, with respect to sales in
Canadian provinces (the provinces in which sales are made being referred to
collectively as the "Relevant Provinces"), the preliminary
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Canadian offering memorandum dated May 30, 2003) (the "Preliminary Offering
Memorandum"), and a final offering memorandum (including, with respect to sales
in the Relevant Provinces, the final Canadian offering memorandum dated June 13,
2003) and available for distribution on the date hereof (the "Offering
Memorandum") relating to the Company, the Guarantors and the Original Notes.
The Initial Purchasers have advised the Company that the Initial
Purchasers intend, as soon as they deem practicable after this Purchase
Agreement (this "Agreement") has been executed and delivered, to resell (the
"Exempt Resales") the Original Notes purchased by the Initial Purchasers under
this Agreement in private sales exempt from registration under the Act, and
without the filing of a prospectus with any Securities Commission in Canada or
similar regulatory authority ("Canadian Securities Regulator") under the
securities legislation of any province of Canada (collectively, the "Canadian
Securities Laws"), in reliance upon exemptions from the prospectus requirements
of the applicable Canadian Securities Laws, on the terms set forth in the
Offering Memorandum, as amended or supplemented, solely to (i) persons whom the
Initial Purchasers reasonably believe to be "qualified institutional buyers," as
defined in Rule 144A under the Act ("QIBs"), (ii) other eligible purchasers
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Act, and (iii) persons in Canada and to
residents of Canada, in transactions which are exempt from the prospectus
requirements of applicable Canadian Securities Laws; the persons specified in
clauses (i), (ii) and (iii) are sometimes collectively referred to herein as the
"Eligible Purchasers."
Upon issuance of the Original Notes and until such time as the same is
no longer required under the applicable requirements of the Act, the Original
Notes shall bear the legend relating thereto set forth under "Notice to
Investors" in the Offering Memorandum.
Holders (including subsequent transferees) of the Original Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement") to be dated the Closing Date in form and
substance reasonably satisfactory to the Initial Purchasers and conforming to
the description thereof in the Offering Memorandum, for so long as such Original
Notes constitute "Registrable Notes" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Issuers will
agree to (i) file with the Securities and Exchange Commission (the "Commission")
under the circumstances set forth in the Registration Rights Agreement, (a) a
registration statement under the Act (the "Exchange Offer Registration
Statement") relating to a new issue of debt securities (collectively, with the
Private Exchange Notes (as defined in the Registration Rights Agreement), the
"Exchange Notes" and, together with the Original Notes, the "Notes," which term
includes the guarantees related thereto) to be offered in exchange for the
Original Notes (the "Exchange Offer") and issued under the Indenture and
representing the same continuing indebtedness as the Original Notes and/or (b)
under certain circumstances set forth in the Registration Rights Agreement, a
shelf registration statement pursuant to Rule 415 under the Act
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(the "Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, the "Registration Statements") relating to the resale by
certain holders of the Original Notes, and (ii) to use their reasonable best
efforts to cause such Registration Statements to be declared effective. This
Agreement, the Notes, the Indenture and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "Note Documents."
The Original Notes are being offered and sold by the Company in order
to apply the proceeds therefrom in the manner set forth in the Offering
Memorandum.
The offering of the Original Notes and the use of proceeds therefrom
in the manner set forth in the Offering Memorandum on the Closing Date (as
defined below) are collectively referred to as the "Transactions."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, the Issuers
agree to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree to purchase from the Issuers, the aggregate principal amount of the
Original Notes set forth opposite their respective names in Schedule III hereto.
The Purchase price for the Original Notes shall be 97.75% of their principal
amount.
3. Delivery and Payment. Delivery of, and payment of the purchase
price for, the Original Notes shall be made at 10:00 a.m., New York City time,
on June 18, 2003 (such date and time, the "Closing Date") at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The
Closing Date and the location of delivery of and the form of payment for the
Original Notes may be varied by mutual agreement between the Initial Purchasers
and the Company.
One or more of the Original Notes in global form registered in such
names as the Initial Purchasers may request upon at least one business day's
notice prior to the Closing Date and having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Notes shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor by means of transfer of immediately available funds to such account or
accounts specified by the Company in accordance with its obligations under
Section 4(g) hereof on or prior to the Closing Date, or by such means as the
parties hereto shall agree prior to the Closing Date.
4. Agreements of the Issuers. The Issuers, jointly and severally,
convenant and agree with the Initial purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers, without charge, with as many copies of the
Preliminary Offering
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Memorandum and the Offering Memorandum, and any amendments or supplements
thereto, as the Initial Purchasers may reasonably request. The Issuers
consent to the use of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments and supplements thereto required pursuant to
this Agreement, by the Initial Purchasers in connection with Exempt
Resales.
(b) Not to amend or supplement the Offering Memorandum prior to
completion of the initial distribution of the Original Notes unless the
Initial Purchasers shall previously have been advised of, and shall not
have objected to, such amendment or supplement within a reasonable time.
(c) If, prior to completion of the initial distribution of the
Original Notes, any event shall occur that, in the judgment of the Issuers
or in the judgment of counsel to the Initial Purchasers, makes any
statement of a material fact in the Offering Memorandum, as then amended or
supplemented, untrue or that requires the making of any additions to or
changes in the Offering Memorandum in order to make the statements in the
Offering Memorandum, as then amended or supplemented, in the light of the
circumstances under which they are made, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with all
applicable laws, the Issuers shall promptly notify the Initial Purchasers
of such event and prepare an appropriate amendment or supplement to the
Offering Memorandum so that (i) the statements in the Offering Memorandum,
as amended or supplemented, will, in the light of the circumstances at the
time that the Offering Memorandum is delivered to prospective Eligible
Purchasers, not be misleading and (ii) the Offering Memorandum will comply
with all applicable laws.
(d) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the qualification or registration of
the Original Notes under the securities laws of such jurisdictions as the
Initial Purchasers may request and to continue such qualification in effect
so long as required for the Exempt Resales. Not-withstanding the foregoing,
no Issuer shall be required to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent
to service of process in any such jurisdiction or subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, to confirm such advice in writing, of the issuance
by any securities commission of any stop order suspending the qualification
or exemption from qualification of any of the Original Notes for offering
or sale in any jurisdiction, or the initiation of any proceeding for such
purpose by any securities commission or any other regulatory authority. The
Issuers shall use their reasonable best efforts to prevent the issuance of
any stop order or order suspending the qualification or exemption of any of
the Origi-
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nal Notes under any securities laws, and if at any time any securities
commission or any other regulatory authority shall issue an order
suspending the qualification or exemption of any of the Original Notes
under any securities laws, the Issuers shall use their reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(f) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated other
than by reason of default by the Initial Purchasers, to pay all costs,
expenses, fees, disbursements (including fees, expenses and disbursements
of counsel to the Issuers) reasonably incurred and stamp, documentary or
similar taxes incident to and in connection with (i) the preparation,
printing and distribution of the Preliminary Offering Memorandum and the
Offering Memorandum (including, without limitation, financial statements)
and all amendments and supplements thereto, (ii) all expenses (including
the expenses for the jet used for transportation of management of the
Company and the Initial Purchasers in connection with such meetings) of the
Issuers in connection with any meetings with prospective investors in the
Original Notes, (iii) the preparation, notarization (if necessary) and
delivery of the Note Documents and all other agreements, memoranda,
correspondence and documents prepared and delivered in connection with this
Agreement and with the Exempt Resales, (iv) the issuance, transfer and
delivery by the Company and the Guarantors of the Original Notes and the
Guarantees, respectively, to the Initial Purchasers, (v) the qualification
or registration of the Notes for offer and sale under the securities laws
of the several states of the United States or provinces of Canada
(including, without limitation, the cost of printing and mailing
preliminary and final Blue Sky or legal investment memoranda and fees and
disbursements of counsel (including local counsel) to the Initial
Purchasers relating thereto, such fees and expenses limited to $5,000 other
than in connection with preparation of the Canadian offering document),
(vi) the furnishing of such copies of the Preliminary Offering Memorandum
and the Offering Memorandum, and all amendments and supplements thereto, as
may be reasonably requested for use in connection with Exempt Resales,
(vii) the preparation of certificates for the Notes, (viii) the application
for quotation of the Notes in The Portal Market ("Portal") market of the
National Association of Securities Dealers, Inc. ("NASD"), including, but
not limited to, all listing fees and expenses, (ix) the approval of the
Notes by The Depository Trust Company ("DTC") for "book-entry" transfer,
(x) the rating of the Notes by rating agencies, (xi) the fees and expenses
of the Trustee and its counsel and (xii) the performance by the Issuers of
their other obligations under the Note Documents. In addition, if the
transactions contemplated by this agreement are not consummated or this
agreement is terminated other than by reason of a default by the Initial
Purchasers, the Issuer shall pay the fees, expenses and disbursements of
counsel to the Initial Purchasers.
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(g) To use the proceeds from the sale of the Original Notes in the
manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(h) To do and perform all things required to be done and performed
under this Agreement by them prior to or after the Closing Date and to
satisfy all conditions precedent on their part to the delivery of the
Original Notes.
(i) Not to, and not to permit any of their subsidiaries to, sell,
offer for sale or solicit offers to buy any security (as defined in the
Act) that would be integrated with the sale of the Original Notes in a
manner that would require the registration under the Act of the sale of the
Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their reasonable best
efforts to cause their other affiliates (as defined in Rule 144 under the
Act) not to, resell any of the Original Notes that have been reacquired by
any of them.
(k) Not to engage, not to allow any of their subsidiaries to engage,
and to use their reasonable best efforts to cause their other affiliates
and any person acting on their behalf (other than, in any case, the Initial
Purchasers and any of their affiliates, as to whom the Issuers make no
covenant) not to engage, in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Act) in
connection with any offer or sale of the Original Notes in the United
States or in any Province of Canada (the "Canadian Provinces") prior to
the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of their subsidiaries to engage,
and to use their reasonable best efforts to cause their other affiliates
and any person acting on their behalf (other than, in any case, the Initial
Purchasers and any of their affiliates, as to whom the Issuers make no
covenant) not to engage, in any directed selling effort with respect to the
Original Notes, and to comply with the offering restrictions requirement of
Regulation S under the Act. Terms used in this paragraph have the meanings
given to them by Regulation S.
(m) Not to register any transfer of the Original Notes not made in
accordance with the provisions of Regulation S and not, except in
accordance with the provisions of Regulation S, if applicable, to issue any
such Original Notes in the form of definitive securities in connection with
the Original Notes offered and sold in an offshore transaction (as defined
in Regulation S).
(n) From and after the Closing Date, for so long as any of the Notes
remain outstanding and are "restricted securities" within the meaning of
Rule 144(a)(3) under the Act and during any period in which the Company is
not subject to Section 13 or
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15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to make available upon request the information required by Rule
144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in
connection with any sale of such Notes and (ii) any prospective purchaser
of such Notes from any such holder or beneficial owner designated by the
holder or beneficial owner. The Issuers will pay the expenses of printing
and distributing such documents.
(o) To comply with all of their agreements set forth in the
Registration Rights Agreement.
(p) To comply with all of their obligations set forth in the
representations letter of the Issuers to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer and to use their best efforts to
obtain approval of the Notes by DTC for "book-entry" transfer.
(q) To use their reasonable best efforts to effect the inclusion of
the Original Notes in Portal.
(r) Prior to the Closing Date, to furnish without charge to the
Initial Purchasers, (i) as soon as they have been prepared by the Company,
a copy of any regularly prepared final internal financial statements of the
Company and its subsidiaries for any period subsequent to the period
covered by the financial statements appearing in the Offering Memorandum,
(ii) all other reports and other communications (financial or otherwise)
that the Issuers mail or otherwise make available to security holders or
the Trustee and (iii) such other information as the Initial Purchasers
shall reasonably request.
(s) Not to distribute prior to the Closing Date any offering material
in connection with the offer and sale of the Original Notes other than the
Preliminary Offering Memorandum and the Offering Memorandum.
(t) During the period of two years after the Closing Date or, if
earlier, until such time as the Original Notes are no longer restricted
securities (as defined in Rule 144 under the Act), not to be or become a
closed-end investment company required to be registered, but not
registered, under the Investment Company Act of 1940.
(u) To file, within the time periods prescribed by the applicable
Canadian Securities Laws, such documents and reports as may be required to
be filed by the Issuers with Canadian Securities Regulators under the
applicable Canadian Securities Laws relating to the private placement of
Original Notes by the Initial Purchasers; provided that the Initial
Purchasers have delivered a request to effect such filings together with
such information as to permit the Issuers to do so, and the Issuers will
pay any filing fee prescribed with respect thereto.
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(v) In connection with the offering, until the Initial Purchasers
shall have notified the Company of the completion of the resale of the
Notes, not to, and not to permit any of their affiliates (as such term is
defined in Rule 501(b) of Regulation D under the Act) to, either alone or
with one or more other persons, bid for or purchase for any account in
which they or any of their affiliates have a beneficial interests any
Notes; and none of the Issuers nor any of their affiliates will make bids
or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Notes.
5. Representations and Warranties. a) The Issuers, jointly and
severally, represent and warrant to the Initial Purchasers that:
(i) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared for use in connection with the Exempt Resales.
Neither the Preliminary Offering Memorandum nor the Offering Memorandum as
of its respective date, nor on the Closing Date, the Offering Memorandum,
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Issuers make no representation or warranty with
respect to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum, as supplemented or amended,
in reliance upon and in conformity with the information furnished to the
Company in writing by UBS Securities LLC on behalf of the Initial
Purchasers relating to the Initial Purchasers expressly for inclusion in
the Preliminary Offering Memorandum, the Offering Memorandum or any
supplement or amendment thereto. No order preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued or to
the knowledge of the Company or the Subsidiaries, has been threatened.
(ii) There are not securities of the Issuers that are listed on a
national securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated interdealer quotation
system of the same class as the Notes within the meaning of Rule 144A under
the Act.
(iii) As of March 31, 2003, the Company's capitalization as adjusted
for the Transactions shall be as set forth under the "As Adjusted" column
under the heading "Capitalization" in the Offering Memorandum. Attached
hereto as Schedule II is a true and complete list of each subsidiary of the
Company that (x) owns more than 5% of the Company's consolidated assets or
(y) accounted for more than 5% of the Company's consolidated revenues for
the Company's fiscal year ended December 31, 2002 or for the three months
ended March 31, 2003, their jurisdictions of incorporation or
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formation, type of entity and percentage equity ownership by the Company
(all such Significant Subsidiaries, the "Subsidiaries"). The entities
listed on Schedule II hereto are the only Subsidiaries, direct or indirect,
of the Company. All of the issued and outstanding shares of capital stock
or other equity interests of each of the Company's Subsidiaries have been
duly and validly authorized and issued, are fully paid and nonassessable,
were not issued in violation of any preemptive or similar rights and,
except as set forth in the Offering Memorandum, are owned by the Company
free and clear of all Liens (as defined in the Indenture) (other than those
imposed by the Act or the securities or "Blue Sky" laws of certain
jurisdictions). Except as set forth in the Offering Memorandum, there are
no outstanding options, warrants or other rights to acquire or purchase, or
instruments convertible into or exchangeable for, any shares of capital
stock of any of the Company's Subsidiaries. No holder of any securities of
the Company or any of the Subsidiaries is entitled to have such securities
(other than the Notes) registered under any registration statement
contemplated by the Registration Rights Agreement or any other agreement.
(iv) Each of the Company and the Subsidiaries (a) is a corporation,
partnership or other entity duly organized and validly existing under the
laws of the jurisdiction of its incorporation or organization, as the case
may be; (b) has all requisite corporate or other power and authority, and
has all governmental licenses, authorizations, consents and approvals,
necessary to own its property and carry on its business as now being
conducted, except if the failure to obtain any such license, authorization,
consent and approval would not reasonably be expected to have a Material
Adverse Effect; and (c) is qualified to do business as a foreign or
extra-provincial entity and is in good standing in all jurisdictions in
which the nature of the business conducted by it makes such qualification
necessary and where failure to be so qualified and in good standing
individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect. A "Material Adverse Effect" means any material
adverse effect on the business, financial condition, results of operations,
properties or prospects of the Company and its subsidiaries, taken as a
whole.
(v) Each of the Issuers has all requisite corporate or other power
and authority to execute, deliver and perform all of its obligations under
the Note Documents to which it is a party and to consummate the
transactions contemplated by the Note Documents to be consummated on its
part and, without limitation, the Company has all requisite corporate power
and authority to issue, sell and deliver and perform its obligations under
the Notes and each Guarantor has all requisite corporate or other power and
authority to execute, deliver and perform all its obligations under its
Guarantee.
(vi) This Agreement has been duly and validly authorized, executed
and delivered by each Issuer.
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(vii) The Indenture has been duly and validly authorized by each
Issuer and, when duly executed and delivered by each Issuer (assuming the
due authorization, execution and delivery thereof by the Trustee), will be
a legal, valid and binding obligation of each of the Issuers, enforceable
against each of them in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, receivership,
arrangement, winding up or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought. The Indenture, when executed and delivered, will conform in all
material respects to the description thereof in the Offering Memorandum.
(viii) The Original Notes have been duly and validly authorized for
issuance and sale to the Initial Purchasers by the Company and, when
issued, authenticated and delivered by the Company against payment by the
Initial Purchasers in accordance with the terms of this Agreement and the
Indenture, the Original Notes will be legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, receivership,
arrangement, winding up or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought. The Original Notes, when issued, authenticated and delivered, will
conform in all material respects to the description thereof in the Offering
Memorandum.
(ix) The Exchange Notes have been, or upon the Closing Date will be,
duly and validly authorized for issuance by the Company and, when issued,
authenticated and delivered by the Company in accordance with the terms of
the Registration Rights Agreement and the Indenture, the Exchange Notes
will be legal, valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, receivership, arrangement, winding up or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(x) The Guarantees have been duly and validly authorized by the
Guarantors and, when the Original Notes are issued, authenticated and
delivered by the Company against payment by the Initial Purchasers in
accordance with the terms of this Agreement and the Indenture, will be
legal, valid and binding obligations of the Guarantors, enforceable against
each of them in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
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fraudulent conveyance, moratorium, receivership, arrangement, winding up or
other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court before
which any proceeding therefor may be brought. The Guarantees, when executed
and delivered, will conform in all material respects to the description
thereof in the Offering Memorandum.
(xi) The guarantees to be endorsed on the Exchange Notes have
been duly and validly authorized by the Guarantors and, when the Exchange
Notes are issued, authenticated and delivered in accordance with the terms
of the Registration Rights Agreement and the Indenture, will be legal,
valid and binding obligations of the Guarantors, enforceable against each
of them in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, receivership, arrangement, winding up or other
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity and the discretion of the court before
which any proceeding therefore may be brought.
(xii) The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and, when duly executed and delivered by
each of the Issuers (assuming the due authorization, execution and delivery
thereof by the Initial Purchasers), will constitute a legal, valid and
binding obligation of each of the Issuers, enforceable against them in
accordance with its terms, except that (A) the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium,
receivership, arrangement, winding up or other similar laws now or
hereafter in effect relating to the enforcement of creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought and (B) any
rights to indemnity or contribution thereunder may be limited by federal,
provincial and state securities laws and public policy considerations. The
Registration Rights Agreement will conform in all material respects to the
description thereof in the Offering Memorandum.
(xiii) All taxes, fees and other governmental charges that are due and
payable on or prior to the Closing Date in connection with the execution,
delivery and performance of the Note Documents and the execution, delivery
and sale of the Original Notes shall have been paid by or on behalf of the
Company at or prior to the Closing Date.
(xiv) None of the Company or the Subsidiaries is (A) in violation
of its charter, bylaws or other constitutive documents, (B) in default (or,
with notice or lapse of time or both, would be in default) in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any bond, debenture, note, indenture, mortgage,
deed of trust, loan or credit agreement, lease, license, franchise
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agreement, authorization, permit, certificate or other agreement or
instrument to which any of them is a party or by which any of them is bound
or to which any of their assets or properties is subject (collectively,
"Agreements and Instruments"), or (C) in violation of any law, statute,
rule, regulation, judgment, order or decree of any domestic or foreign
court with jurisdiction over any of them or any of their assets or
properties or other governmental or regulatory authority, agency or other
body, which, in the case of clauses (B) and (C) herein, would reasonably be
expected to have, either individually or in the aggregate, a Material
Adverse Effect. There exists no condition that, with notice, the passage of
time or otherwise, would constitute a default by the Company or the
Subsidiaries under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness, other
than penalties, defaults or conditions that would not have a Material
Adverse Effect.
(xv) There is no order, ruling or direction of any Canadian
Securities Regulator which would deny the benefit of an exemption otherwise
provided for under applicable Canadian Securities Laws with respect to the
distribution of the Original Notes, the Exchange Notes, or the Private
Exchange Notes, if any, and no proceedings which would reasonably be
expected to result in any such order or ruling have been instituted or are
pending or, to the knowledge of the Company, threatened.
(xvi) The execution, delivery and performance by each of the Issuers
of the Note Documents to which they are a party including the consummation
of the offer and sale of the Original Notes does not or will not violate,
conflict with or constitute a breach of any of the terms or provisions of
or a default under (or an event that with notice or the lapse of time, or
both, would constitute a default), or require consent under, or result in
the creation or imposition of a lien, charge or encumbrance on any property
or assets of any of the Company or any Subsidiary or an acceleration of any
indebtedness of the Company or any Subsidiary pursuant to, (i) the charter,
bylaws or other constitutive documents of any of the Company or any
Subsidiary, (ii) assuming the consummation of the transactions contemplated
thereby, any Agreements and Instruments (other than the Company's existing
10.58% senior notes due 2005 (the "10.58% Notes")), (iii) any material law,
statute, rule or regulation applicable to the Company or any Subsidiary or
their respective assets or properties or (iv) any material judgment, order
or decree of any domestic or foreign court or governmental agency or
authority having jurisdiction over the Company or any Subsidiary or their
respective assets or properties, except in the case of clause (ii), for any
such violations, conflicts breaches and defaults that would not
individually or in the aggregate have a Material Adverse Effect. Assuming
the accuracy of the representations and warranties of the Initial
Purchasers in Section 5(b) of this Agreement, no material consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any court or governmental
agency, body or administrative agency, domestic or foreign, is required to
be obtained or made by the Company or any Subsidiary for the
-13-
execution, delivery and performance by each of the Company or any
Subsidiary of the Note Documents to which it is a party including the
consummation of any of the transactions contemplated thereby, except (w)
such as have been or will be obtained or made on or prior to the Closing
Date, (x) registration of the Exchange Offer or resale of the Notes under
the Act pursuant to the Registration Rights Agreement or (y) qualification
of the Indenture under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), in connection with the issuance of the Exchange
Notes. No consents or waivers from any other person or entity are required
for the execution, delivery and performance of this Agreement or any of the
other Note Documents or the consummation of any of the transactions
contemplated thereby, other than such consents and waivers as have been
obtained or will be obtained prior to the Closing Date.
(xvii) Except as set forth in the Offering Memorandum, there is (A) no
action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or,
to the knowledge of the Company or any Subsidiary threatened or
contemplated, to which any of the Company or any Subsidiary is or may be a
party or to which the business, assets or property of such person is or may
be subject, (B) no statute, rule, regulation or order that has been
enacted, adopted or issued or, to the knowledge of the Issuers, that has
been proposed by any governmental body or agency, domestic or foreign, (C)
no injunction, restraining order or order of any nature by a federal or
state court or foreign court of competent jurisdiction to which any of the
Company or any Subsidiary is or may be subject that (in the case of clause
(A) above, if determined adversely to any of the Company or any
Subsidiary), would reasonably be expected, either individually or in the
aggregate, (1) to have a Material Adverse Effect or (2) to interfere with
or adversely affect the issuance of the Notes in any jurisdiction or
adversely affect the consummation of the transactions contemplated by any
of the Note Documents. Every request of any securities authority or agency
of any jurisdiction for additional information with respect to the Notes
that has been received by the Company or any Subsidiary or their counsel
prior to the date hereof with respect to the Transactions has been, or will
prior to the Closing Date be, complied with in all material respects.
(xviii) Except as would not reasonably be expected to have a Material
Adverse Effect, no labor disturbance by the employees of any of the Company
or the Subsidiaries exists or, to the knowledge of the Issuers, is
imminent.
(xix) Except as set forth in the Offering Memorandum, the Company and
each Subsidiary (A) is in compliance with, or not subject to costs or
liabilities under laws, regulations, rules of common law, orders and
decrees in any jurisdiction or province, as in effect as of the date
hereof, and any present judgments and injunctions issued or promulgated
thereunder relating to pollution or protection of public and em-
-14-
ployee health and safety, the environment or hazardous to toxic substances
or wastes, pollutants or contaminants applicable to it or its business or
operations or ownership or use of its property ("Environmental Laws"),
other than any such noncompliance or such costs or liabilities that would
not reasonably be expected to, either individually or in the aggregate,
have a Material Adverse Effect, and (B) possesses all permits, licenses or
other approvals required under applicable Environmental Laws, except where
the failure to possess any such permit, license or other approval would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. All currently pending and, to the knowledge of the
Issuers, threatened proceedings, notices of violation, demands, notices of
potential responsibility or liability, suits and existing environmental
investigations by any governmental authority which the Company or the
Subsidiaries could reasonably expect to result in a Material Adverse Effect
are fully and accurately described in all material respects in the Offering
Memorandum. The Company and each Subsidiary maintains a system of internal
environmental management controls sufficient to provide reasonable
assurance of compliance in all material respects of its business
facilities, real property and operations with requirements of applicable
Environmental Laws.
(xx) The Company and each Subsidiary has (A) all licenses,
certificates, permits, authorizations, approvals, franchises and other
rights from, and has made all declarations and filings with, all applicable
authorities, all self-regulatory authorities and all courts and other
tribunals (each, an "Authorization") necessary to engage in the business
conducted by it in the manner described in the Offering Memorandum, except
where failure to hold such Authorizations would not be reasonably expected
to have a Material Adverse Effect, and (B) no reason to believe that any
governmental body or agency, domestic or foreign, is considering limiting,
suspending or revoking any such Authorization, except where such
limitation, suspension or revocation would not reasonably be expected to
have a Material Adverse Effect. All such Authorizations are valid and in
full force and effect and the Company and each Subsidiary is in compliance
with the terms and conditions of all such Authorizations and with the rules
and regulations of the regulatory authorities having jurisdiction with
respect to such Authorizations, except for any invalidity, failure to be in
full force and effect or non-compliance that would not reasonably be
expected to have a Material Adverse Effect.
(xxi) The Company and each Subsidiary has valid title in fee simple
to all items or real property and title to all personal property owned by
each of them, in each case free and clear of any pledge, lien, encumbrance,
security interest or other defect or claim of any third party, except (i)
such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such
property by the Company or such Subsidiary to an extent that such
interference would have a Material Adverse Effect, and (ii) permitted liens
set forth in the Offering Memorandum. Any real property and buildings held
under lease by the Com-
-15-
pany or any such Subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as do not materially interfere
with the use made or proposed to be made of such property and buildings by
the Company or such Subsidiary, except as would not reasonably be expected
to, either individually or in the aggregate, have a Material Adverse
Effect.
(xxii) The Company and each Subsidiary owns, possesses or has the
right to employ all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively, the
"Intellectual Property") necessary to conduct the businesses operated by it
as described in the Offering Memorandum, except where the failure to own,
possess or have the right to employ such Intellectual Property would not
reasonably be expected to have a Material Adverse Effect. None of the
Company or any Subsidiary has received any notice of infringement of or
conflict with (and neither knows of any such infringement or a conflict
with) asserted rights of others with respect to any of the foregoing that,
if such assertion of infringement or conflict were sustained, would
reasonably be expected to have a Material Adverse Effect. The use of the
Intellectual Property in connection with the business and operations of the
Company and the Subsidiaries does not infringe on the rights of any person,
except for such infringement as would not reasonably be expected to have a
Material Adverse Effect.
(xxiii) All tax returns required to be filed by the Company and each
Subsidiary have been filed in all jurisdictions where such returns are
required to be filed; and all taxes, including withholding taxes, value
added and franchise taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities or that are due
and payable have been paid, other than those being contested in good faith
and for which reserves have been provided in accordance with GAAP (as
defined in the Indenture) or those currently payable without penalty or
interest and except where the failure to make such required filings or
payment would not reasonably be expected to have a Material Adverse Effect.
To the Knowledge of the Issuers, there are no material proposed additional
tax assessments against any of the Company and the Subsidiaries or their
assets or property.
(xxiv) Neither the Company nor the Subsidiaries has any liability for
any prohibited transaction or accumulated funding deficiency (within the
meaning of Section 412 of the Code) or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan which
is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which the Company or any of the Subsidiaries makes or
ever has made a contribution and in which any employee of the Company or
any of the Subsidiaries is or has ever been a participant, except as would
not reasonably be expected to, either individually or in the aggregate,
have a
-16-
Material Adverse Effect. With respect to such plans, the Company and each
of the Subsidiaries is in compliance in all material respects with all
applicable provisions of ERISA, except as would not reasonably be expected
to, either individually or in the aggregate, have a Material Adverse
Effect.
(xxv) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, each of the pension, profit sharing or other
employee benefit plans or arrangements pursuant to which the Company or any
Subsidiary maintains or is required to make contributions to with respect
to any employees (or former employees) employed in Canada, excluding any
plans to be contributed by reason of a collective bargaining agreement or
applicable legislation and which are not administered by the Company or any
Subsidiary ("Canadian Plans"), is, where required, duly registered and is
in good standing under and in compliance with all applicable legislation
and administrative guidelines issued by applicable Canadian regulatory
authorities; all of such Canadian Plans have been funded in accordance with
their rules and all applicable Canadian legislation and generally accepted
actuarial principles and practices in Canada; all such Canadian Plans have
been administered in accordance with their terms and there are no material
outstanding defaults or violations by the Company or any Subsidiary of any
obligation required to be performed by it in connection with any such
Canadian Plan. In respect of all pension, profit sharing or other employee
benefit plans or arrangements to which the Company or any Subsidiary is
required to contribute by reason of a collective bargaining agreement or
applicable legislation and which are not administered by the Company or any
Subsidiary, the Company has made all contributions to such plan or
arrangement that are required by the applicable collective bargaining
agreement or applicable legislation, except as would not, individually or
in the aggregate, have a Material Adverse Effect.
(xxvi) Neither the Company nor any Subsidiary is an "investment
company" or a company "controlled" by an "investment company" incorporated
in the United States within the meaning of the Investment Company Act of
1940, as amended.
(xxvii) The Company and each Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of its financial statements in conformity with Canadian
GAAP and reconciliation of such financial statements to U.S. GAAP in
accordance with Item 18 of Form 20-F under the Exchange Act and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for its assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
-17-
(xxviii) The Company and each Subsidiary maintain insurance covering its
properties, assets, operations, personnel and businesses, and such
insurance is of such type and in such amounts in accordance with customary
industry practice.
(xxix) Neither the Company nor (to its knowledge) any of its
affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
(A) taken, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation
of the price of any security of the Issuers to facilitate the sale or
resale of the Original Notes or (B) sold, bid for, purchased or paid any
person any compensation for soliciting purchases of the Original Notes in a
manner that would require registration of the Original Notes under the Act
or paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of any Issuer in a manner that
would require registration of the Original Notes under the Act.
(xxx) Neither the Company nor (to its knowledge) any of its
affiliates (as defined in Regulation D under the Act) has, directly or
through any agent (other than the Initial Purchasers or any affiliate of
the Initial Purchasers, as to which no representation is made), sold,
offered for sale, contracted to sell, pledged, solicited offers to buy or
otherwise disposed of or negotiated in respect of, any security (as defined
in the Act) that is currently or will be integrated with the sale of the
Original Notes in a manner that would require the registration of the
Original Notes under the Act.
(xxxi) None of the Issuers or (to their knowledge) any of their
affiliates, or any person acting on its or their behalf (other than the
Initial Purchasers, as to whom the Issuers make no representation), is
engaged in any directed selling effort with respect to the Original Notes,
and each of them has complied with the offering restrictions requirement of
Regulations S under the Act. Terms used in this paragraph have the meaning
given to them by Regulation S.
(xxxii) No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency is required for the Company's execution, delivery and
performance of the Note Documents or the issuance and delivery of the Notes
or the Exchange Notes, or consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum (including, but not
limited to, the obligations of the Company to effect payments of principal
of, and premium, interest and Liquidated Damages (as defined in the
Registration Rights Agreement) if any, on the Notes and the Exchange Notes
in United States dollars free of any liability on the part of any holder
thereof), except such as have been obtained or made by the Issuers and are
in full force and effect and as required under Canadian and as may be
required by federal, provincial and state securities laws with respect to
the Issuers' Obligations under the Registration Rights Agree-
-18-
ment. No form of general solicitation or general advertising (prohibited by
the Act in connection with offers or sales such as the Exempt Resales) was
used anywhere by the Company or any of its representatives (other than the
Initial Purchasers, as to whom the Issuers make no representation) in
connection with the offer and sale of any of the Original Notes or in
connection with Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio or displayed on any
computer terminal, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. Neither the
Company nor any of its affiliates has entered into, and neither the Company
nor any of its affiliates will enter into, any contractual arrangement with
respect to the distribution of the Original Notes except for this
Agreement.
(xxxiii) As of March 31, 2003, neither the Company nor any Subsidiary
had any material liabilities or obligations, direct or contingent, that
were not set forth in the Company's consolidated balance sheet as of such
date or in the notes thereto set forth in the Offering Memorandum if
required to be so set forth under Canadian GAAP. Since March 31, 2003,
except as set forth or contemplated in the Offering Memorandum, (a) neither
the Company nor any Subsidiary has (1) incurred any liabilities or
obligations, direct or contingent, that would reasonably be expected to
have a Material Adverse Effect, or (2) entered into any material
transaction not in the ordinary course of business, (b) there has not been
any event or development with respect to the business or financial
condition of the Company and the Subsidiaries that, either individually or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect, (c) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock
other than regularly scheduled dividends on the Company's common stock and
preferred stock and (d) there has not been any increase in the long-term
debt of the Company or any of the Subsidiaries.
(xxxiv) Neither the Company nor any of the Subsidiaries (or any agent
thereof acting on their behalf) has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Notes
to violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System, as in effect, or as the same may hereafter be in effect, on
the Closing Date.
(xxxv) To the Company's knowledge, Ernst & Young, LLP is an
independent accountant within the meaning of the Act. The historical
financial statements and the notes thereto included and incorporated by
reference in the Offering Memorandum present fairly in all material
respects the consolidated financial position and results of operations of
the Company and its subsidiaries at the respective dates and for the
respective periods indicated. Such financial statements have been prepared
in accordance with Canadian GAAP applied on a consistent basis throughout
the periods pre-
-19-
sented (excepted as disclosed in the Offering Memorandum). The other
financial and statistical information and data included in the Offering
Memorandum are accurately presented in all material respects and, other
than the U.S. GAAP financial data, which are prepared in accordance with
U.S. GAAP, are prepared on a basis consistent with the financial statements
and the books and records of the Company and its subsidiaries.
(xxxvi) As of the date hereof and immediately prior to and immediately
following the issuance of the Notes on the Closing Date the Company and
each of the Subsidiaries is and will be Solvent. No Issuer is contemplating
either the filing of a petition by it under any bankruptcy or insolvency
laws or the liquidating of all or a substantial portion of its property,
and the Company has no knowledge of any Person contemplating the filing of
any such petition against any Issuer. As used herein, "Solvent" shall mean,
for any Person on a particular date, that on such date (a) the fair value
of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will,
incur debts and liabilities beyond such Person's ability to pay as such
debts and liabilities mature, (d) such Person is not engaged in a business
or a transaction, and is not about to engage in a business or a
transaction, for which such Person's property would constitute an
unreasonably small capital and (e) such Person is able to pay its debts as
they become due and payable.
(xxxvii) Except as described in the section entitled "Plan of
Distribution" in the Offering Memorandum, there are no contracts,
agreements or understandings between the Company or any of its Subsidiaries
and any other person other than the Initial Purchasers that would give rise
to a valid claim against the Company, any such Subsidiary or the Initial
Purchasers for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Notes.
(xxxviii) The statistical and market-related data forward-looking
statements (within the meaning of Section 27A of the Act and Section 21E of
the Exchange Act) included in the Offering Memorandum are based on or
derived from sources that the Issuers believe to reliable and accurate in
all material respects and represent their good faith estimates that are
made on the basis of data derived from such sources.
(xxxix) As of the Closing Date, each of the representations and
warranties of the Company and the Subsidiaries set forth in the each of the
Note Documents will be true and correct as if made at and as of such date
(other than to the extent any such representation or warranty is expressly
made as to only a certain other date).
-20-
(x1) Each certificate signed by any officer of the Issuers and
delivered to the Initial Purchasers or counsel for the Initial Purchasers
pursuant to, or in connection with, this Agreement shall be deemed to be a
representation and warranty by the Issuers to the Initial Purchasers as to
the matters covered by such certificate.
(x1i) Except as set forth in the Final Memorandum (or, if the Final
Memorandum is not yet in existence, the most recent Preliminary Memorandum)
or as would not, individually or in the aggregate, have a Material Adverse
Effect, there is no strike, slowdown or work stoppage with the employees of
the Company or any of the Subsidiaries.
(x1ii) The Company has delivered to the Initial Purchasers a true and
correct copy of each of the Note Documents, together with all related
agreements and all schedules and exhibits thereto, and there shall have
been no material amendments, alterations, modifications or waivers of any
of the provisions of any such documents since their respective dates of
execution, other than any such amendments, alterations, modifications and
waivers as to which the Initial Purchasers have been advised in writing and
which would be required to be disclosed in the Offering Memorandum; and to
the best knowledge of the Company and the Subsidiaries there exists no
event or condition which would constitute a default or an event of default
under any of the Note Documents which would result in a Material Adverse
Effect or materially adversely affect the ability of the Company and the
Subsidiaries to consummate the Transactions.
(x1iii) The Company's most recent Annual Reports as filed on Form 40-F
and each of its respective reports on Form 6-K filed within the last twelve
months complied, at the time they were filed, in all material respects with
the applicable Canadian Securities Laws and United States federal
securities laws and did not include an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to
make statements therein, in the light of the circumstances under which they
were made, not misleading.
The Issuers acknowledge that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 8
of this Agreement, counsel to the Issuers and counsel to the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and the
Issuers hereby consent to such reliance.
(b) Each Initial Purchaser acknowledges that it is purchasing the
Original Notes pursuant to a private sale exemption from registration under the
Securities Act, and that the Original Notes have not been registered under the
Securities Act or qualified under Canadian Securities Laws and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except pursuant to an exemption from the registration
requirements of the Securities Act and that the Original Notes may not be
offered or in Canada
-21-
expect pursuant to an exemption from the prospectus requirements of applicable
Canadian Securities Laws. Each Initial Purchaser represents, warrants and
convenants to the Issuers that:
(i) It is a QIB with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and risks
of an investment in the Notes.
(ii) (A) Neither it, nor any person acting on its behalf, has or will
not solicit offers for, or offer or sell, the Original Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act and (B) it has and will
solicit offers for the Original Notes only from, and will offer and sell
the Original Notes only to (1) persons whom such Initial Purchaser
reasonably believes to be QIBs or, if any such person is buying for one or
more institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to the Initial Purchasers
that each such account is a QIB to whom notice has been given that such
sale or delivery is being made in reliance on Rule 144A, and, in each case,
in reliance on the exemption from the registration requirements of the Act
pursuant to Rule 144A, or (2) subject to (3) below, to persons other than
U.S. persons outside the United States in reliance on the exemption from
the registration requirements of the Act provided by Regulation S, or (3)
persons in Canada and to residents of Canada, in transactions which are
exempt from the prospectus requirements of applicable Canadian Securities
Laws (provided that such purchasers agree that the Original Notes and the
Exchange Notes are subject to resale restrictions under applicable Canadian
Securities Laws).
(iii) With respect to offers and sales outside the United States and
subject to (iv) below:
(A) the Initial Purchasers will comply with all applicable laws
and regulations in each jurisdiction in which they acquire, offer,
sell or deliver Notes or have in their possession or distribute either
any Offering Memorandum or any such other material, in all cases at
their own expense; and
(B) the Initial Purchasers have offered the Original Notes and
will offer and sell the Original Notes (1) as part of its distribution
at any time and (2) otherwise until 40 days after the later of the
commencement of the offering of the Original Notes and the Closing
Date, only in accordance with Rule 903 of Regulations S or another
exemption from the registration requirements of the Act. Accordingly,
neither the Initial Purchasers nor any persons acting on their behalf
have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Original Notes, and
any such per-
-22-
sons have complied and will comply with the offering restrictions
requirements of Regulation S.
Terms used in this Section 5(b)(iii) have the meanings given to them by
Regulation S.
(iv) With respect to offers and sales in Canada:
(A) the Initial Purchasers will not offer, sell or deliver the
Original Notes directly or indirectly in Canada (i) except pursuant to
exemptions from the prospectus requirements of applicable Canadian
Securities Laws and (ii) in violation of Canadian Securities Laws; and
(B) that (i) it will distribute Securities in any Relevant
Provinces only directly or through affiliates which are properly
registered under the Canadian Securities Laws of such Relevant
Provinces and in any such case will distribute the Securities only in
accordance with such registration or (iii) it will distribute
Securities in any Relevant Province only in accordance with exemptions
from the registration requirements of applicable Canadian Securities
Laws.
(v) The source of funds being used by it to acquire the Original
Notes does not include the assets of any "employee benefit plan" (within
the meaning of Section 3 of ERISA) or any "plan" (within the meaning of
Section 4975 of the Code).
(c) Each Initial Purchaser represents and warrants (as to itself
only) that it will provide the Company with information regarding the sale of
the Original Notes to purchasers in the Relevant Provinces required to be filed
under applicable Canadian Securities Laws to enable the Company to file with the
Canadian Securities Regulators the post-trade filings.
The Initial Purchasers understand that the Issuers and, for purposes
of the opinions to be delivered to them pursuant to Section 8 hereof, counsel to
the Issuers and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations, and the Initial Purchasers hereby
consent to such reliance.
6. Indemnification. b) Each of the Issuers, jointly and severally,
agrees to indemnify and hold harmless the Initial Purchasers, each person, if
any, who controls the Initial Purchasers within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of the Initial Purchasers and the agents, employees, officers and
directors of any such controlling person from and against any and all losses,
liabilities, claims, damages and expenses whatsoever (including, but not
limited, to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in inves-
-23-
tigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation) (collectively, "Losses") to which they or
any of them may become subject under the Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or the Offering Memorandum, or
in any supplement thereto or amendment thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Issuers will not be
liable in any such case to the extent, but only to the extent, that any such
Loss arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information relating to the Initial Purchasers furnished
to the Company by or on behalf of the Initial Purchasers expressly for use
therein, provided, however, that with respect to any untrue statement or
omission from the Preliminary Offering Memorandum the indemnity agreement
contained in this Section 6(a) shall not inure to the benefit of any Initial
Purchaser to the extent that the sale to the person asserting any such Loss was
an initial resale by such Initial Purchaser and any such Loss of or with respect
to such Initial Purchaser results from the fact that both (A) to the extent
required by applicable law, a copy of the Offering Memorandum was not sent or
given to such person at or prior to the written confirmation of the sale of the
Notes to such person and (B) the untrue statement in or omission from the
Preliminary Offering Memorandum was corrected in the Offering Memorandum. This
indemnity agreement will be in addition to any liability that the Issuers may
otherwise have, including, but not limited to, liability under this Agreement.
(a) The Initial Purchasers agree to indemnify and hold harmless each
Issuer, each person, if any, who controls each Issuer within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, and each of their
respective agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling person from and against any
Losses to which they or any of them may become subject under the Act, the
Exchange Act or otherwise insofar as such Losses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Offering Memorandum or the
Offering Memorandum, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with information
relating to the Initial Purchasers furnished in writing to the Company by or on
behalf of the Initial Purchasers expressly for use therein. The Issuers and the
Initial Purchasers acknowledge that the information described in Section 9
-24-
is the only information furnished in writing by the Initial Purchasers to the
Issuers expressly for use in the Preliminary Offering Memorandum or the Offering
Memorandum.
(b) Promptly after receipt by an indemnified party under subsection
6(a) or 6(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 6 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party, will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying parties (or such
indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent which consent may not be unreasonably
withheld. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by paragraph (a) or (b)
of this Section 6, then the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall
-25-
have given the indemnifying party at least 45 days prior notice of its intention
to settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers, on the one hand, and the Initial Purchasers, on the other hand,
from the offering of the Original Notes or (ii) if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Issuers, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuers, on the one hand, and the Initial Purchasers, on the
other hand, shall be deemed to be in the same proportion as (x) the total
proceeds from the offering of Original Notes (net of discounts and commissions
but before deducting expenses) received by the Issuers are to (y) the total
discount received by the Initial Purchasers as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the Issuers, on the
one hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers or the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or omission.
The Issuers and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall the Initial Purchasers be
required to contribute any amount in excess of the amount by which the total
discount applicable to the Original Notes pursuant to this Agreement exceeds the
amount of any damages that the Initial Purchasers have otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act
-26-
shall have the same rights to contribution as the Initial Purchasers, and each
person, if any, who controls any Issuer within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and each director, officer, employee
and agent of such Issuer shall have the same rights to contribution such Issuer.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 7,
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7 or otherwise, except to the extent that it has been
prejudiced in any material respect by such failure; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 6 for purposes of indemnification. Anything in this
section to the contrary notwithstanding, no party shall be liable for
contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably
withheld.
8. Conditions of Initial Purchasers' Obligations. The obligations of
the Initial Purchasers to purchase and pay for the Original Notes, as provided
for in this Agreement, shall be subject to satisfaction of the following
conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Issuers
contained in this Agreement shall be true and correct on the date of this
Agreement and, in each case after giving effect to the transactions
contemplated hereby, on the Closing Date, except that if a representation
and warranty is made as of a specific date, and such date is expressly
referred to therein, such representation and warranty shall be true and
correct as of such date. The Issuers shall have performed or complied with
all of the agreements and covenants contained in this Agreement and
required to be performed or complied with by them at or prior to the
Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers on the day following the date of this
Agreement or at such later date as the Initial Purchasers may determine. No
stop order suspending the qualification or exemption from qualification of
the Original Notes in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending
or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency that would, as of the Closing Date, prevent the issuance of the
Original Notes or consummation of the Exchange Offer; except as disclosed
in the Offering Memorandum, no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to
-27-
the best knowledge of the Issuers, threatened against the Company and/or
any Subsidiary before any court or arbitrator or any governmental body,
agency or official that, if adversely determined, would reasonably be
expected to have a Material Adverse Effect; and no stop order preventing
the use of the Preliminary Offering Memorandum or the Offering Memorandum,
or any amendment or supplement thereto, or any order asserting that any of
the transaction contemplated by this Agreement are subject to the
registration requirements of the Act shall have been issued.
(d) As of March 31, 2003, neither the Company nor any Subsidiary had
any material liabilities or obligations, direct or contingent, that were
not set forth in the Company's consolidated balance sheet as of such date
or in the notes thereto set forth in the Offering Memorandum if so required
under Canadian GAAP. Since March 31, 2003, except as set forth or
contemplated in the Preliminary Offering Memorandum and the Offering
Memorandum, (a) neither the Company nor any Subsidiary has incurred any
liabilities or obligations, direct or contingent, that would reasonably be
expected to have a Material Adverse Effect, (b) there has not been any
event or development in respect of the business or financial condition of
the Company and the Subsidiaries that, either individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect
and (c) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock other than
regularly scheduled dividends on the Company's common stock and preferred
stock.
(e) The Initial Purchasers shall have received certificates, dated
the Closing Date, signed by two authorized officers of each of the Company
and the Subsidiaries confirming, as of the Closing Date, to their
knowledge, the matters set forth in paragraphs (a), (b), (c) and (d) of
this Section 8.
(f) The Initial Purchasers shall have received on the Closing Date
opinions dated the Closing Date, addressed to the Initial Purchasers, of
(i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Issuers substantially in the form of
Exhibit A-1, (ii) general counsel for the Company substantially in the form
of Exhibit A-2 and (iii) Alabama counsel to the Company, as to the due
authorization, execution and delivery of the relevant Transaction Documents
by the Subsidiaries that are organized under the laws of Alabama, in each
case, in form and substance reasonably satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(g) The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory in form and substance to the Initial Purchasers)
dated the Closing Date of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Initial Purchasers and (ii) an opinion (satisfactory in form and substance
to the Initial Purchasers) dated the Closing Date of Blake, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers.
-28-
(h) The Initial Purchasers shall have received a "comfort letter"
from Ernst & Young, LLP, independent public accountant for the Company,
dated the date of this Agreement, addressed to the Initial Purchasers and
in form and substance satisfactory to the Initial Purchasers and counsel to
the Initial Purchasers. In addition, the Initial Purchasers shall have
received a "bring-down comfort letter" from Ernst & Young, LLP, dated as of
the Closing Date, addressed to the Initial Purchasers and in form and
substance satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers.
(i) Each of the Issuers shall have entered into the Indenture and the
Initial Purchasers shall have received copies, conformed as executed,
thereof.
(j) Each of the Issuers shall have entered into the Registration
Rights Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(k) The Initial Purchasers shall have received on the Closing Date a
certificate from the Company dated the Closing Date as to the solvency of
the Company and the Subsidiaries, addressed to the Initial Purchasers.
(l) All government authorizations required in connection with the
issue and sale of the Notes as contemplated under this Agreement and the
performance of the Company's obligations hereunder and under the Indenture
and the Notes shall be in full force and effect.
(m) The Initial Purchasers shall have been furnished with wiring
instructions for the application of the proceeds of the Original Notes in
accordance with this Agreement and such other information as it may
reasonably request.
(n) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers,
shall have been furnished with such documents as they may reasonably
request to enable them to review or pass upon the matters referred to in
this Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions contained in this Agreement.
(o) The Original Notes shall be eligible for trading in the Portal
market upon issuance.
(p) All agreements set forth in the representation letter of the
Issuers to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer shall have been complied with.
(q) The Company shall have redeemed all of its outstanding 10.58%
Notes or mailed an irrevocable notice of redemption to the holder thereof.
-29-
(r) IPSCO Tubulars Inc. shall have executed and delivered a
supplemental guarantee of the Junior Subordinated Notes of IPSCO
Saskatchewan Inc.
If any of the conditions specified in this Section 8 shall not have
been fulfilled in all material respects when and as required by this Agreement
to be fulfilled (or waived by the Initial Purchasers), this Agreement may be
terminated by the Initial Purchasers on notice to the Company at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party. Notwithstanding any such termination, the
provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
The documents required to be delivered by this Section 8 will be
delivered at the office of counsel for the Initial Purchasers on the Closing
Date.
9. Initial purchaser's Information. The Issuers and the Initial
Purchasers severally acknowledge that the statements with respect to the
delivery of the Original Notes to the Initial Purchasers set forth in the first
and second sentences of the third paragraph, the first sentence of the seventh
paragraph, the ninth paragraph and the last sentence of the tenth paragraph
under the caption "Plan of Distribution" in the Preliminary Offering Memorandum
and the Offering Memorandum constitute the only information furnished in writing
by the Initial Purchasers expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum.
10. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements contained in this Agreement, including
the agreements contained in Sections 4(f) and 11(d), the indemnity agreements
contained in Section 6 and the contribution agreements contained in Section 7
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers or any controlling
person thereof or by or on behalf of the Issuers or any controlling person
thereof, and shall survive delivery of and payment for the Original Notes to and
by the Initial Purchasers. The agreements contained in Sections 4(f), 6, 7, 9
and 11(d) shall survive the termination of this Agreement, including pursuant to
Section 11.
11. Effective Date of Agreement; Termination. c) This Agreement shall
become effective upon execution and delivery of a counterpart hereof by each of
the parties hereto.
(a) The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Company from
the Initial Purchasers, without liability (other than with respect to Sections 6
and 7) on the Initial Purchasers' part to the Issuers if, on or prior to such
date, (i) the Issuers shall have failed, refused or been unable to perform in
any material respect any agreement on its part to be performed under this
Agreement when and as required, (ii) any other condition to the obligations of
the Initial Purchasers under this Agreement to be fulfilled by the Issuers
pursuant to Section 8 is not ful-
-30-
filled when and as required in any material respect, (iii) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited, or
minimum prices shall have been established thereon by the Commission, or by such
exchange or other regulatory body or governmental authority having jurisdiction,
(iv) a general banking moratorium shall have been declared by federal or New
York authorities, (v) there is an outbreak or escalation of hostilities or other
national or international calamity; in any case involving the United States, on
or after the date of this Agreement, or if there has been a declaration by the
United States of a national emergency or war or other national or international
calamity or crisis (economic, political, financial or otherwise) which affects
the U.S. and international markets, making it, in the Initial Purchasers'
reasonable judgment, impracticable to proceed with the offering or delivery of
the Original Notes on the terms and in the manner contemplated in the Offering
Memorandum or (vi) there shall have been such a material adverse change in
general economic, political or financial conditions or the effect (or potential
effect if the financial markets in the United States have not yet opened) of
international conditions on the financial markets in the United States shall be
such as, in the Initial Purchasers' reasonable judgment, to make it inadvisable
or impracticable to proceed with the offering or delivery of the Notes on the
terms and in the manner contemplated in the Offering Memorandum.
(b) Any notice of termination pursuant to this Section 11 shall be
given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(c) If this Agreement shall be terminated pursuant to clause (i) or
(ii) of Section 11(b), or if the sale of the Notes provided for in this
Agreement is not consummated because of any refusal, inability or failure on the
part of the Issuers to satisfy any condition to the obligations of the Initial
Purchasers set forth in this Agreement to be satisfied on their part or because
of any refusal, inability or failure on the part of the Issuers to perform any
agreement in this Agreement or comply with any provision of this Agreement, the
Issuers will, subject to demand by the Initial Purchasers, reimburse the Initial
Purchasers for all of their reasonable out-of-pocket expenses (including the
fees and expenses of the Initial Purchasers' counsel) incurred in connection
with this Agreement.
12. Notice. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered, or, telegraphed or telecopied and confirmed in writing to UBS
Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telephone:(212)
▇▇▇-▇▇▇▇, fax number:▇▇▇-▇▇▇-▇▇▇▇), Attention: Syndicate Department; and if
sent to the Issuers, shall be mailed, delivered or, telegraphed or telecopied
and confirmed in writing to IPSCO Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇ 60532(telephone: (▇▇▇)▇▇▇-▇▇▇▇, fax:(▇▇▇)▇▇▇-▇▇▇▇, Attention: Chief
Financial Officer.
-31-
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.
13. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Initial Purchasers, the Issuers and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
14. Construction. This Agreement shall be construed in accordance
with the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law).
15. Captions. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
16. Counterparts. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
If the foregoing Purchase Agreement correctly sets forth the
understanding among the Issuers and the Initial Purchasers, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Issuers and the
Initial Purchasers.
IPSCO INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President, General
Counsel and Corporate Secretary
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Assistant Secretary
IPSCO STEEL (ALABAMA) INC.
IPSCO MINNESOTA INC.
IPSCO TUBULARS INC.
IPSCO TEXAS INC.
IPSCO STEEL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
IPSCO INVESTMENTS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
IPSCO ENTERPRISES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Purchase Agreement
IPSCO ONTARIO INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Secretary
IPSCO RECYCLING INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Secretary
IPSCO SASKATCHEWAN INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Secretary
Purchase Agreement
IPSCO ALABAMA LTD.
By: IPSCO STEEL (ALABAMA) INC.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Purchase Agreement
Confirmed and accepted as of
the date first above written:
UBS SECURITIES LLC
on behalf of the Initial Purchasers
named in Schedule III
By: UBS Securities LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Associate Director
Purchase Agreement
Schedule I
Guarantors
----------
IPSCO Steel (Alabama) Inc.
IPSCO Alabama Ltd.
IPSCO Minnesota Inc.
IPSCO Tubulars Inc.
IPSCO Texas Inc.
IPSCO Ontario Inc.
IPSCO Recycling Inc.
IPSCO Investments Inc.
IPSCO Saskatchewan Inc.
IPSCO Steel Inc.
IPSCO Enterprises Inc.
Schedule II
% Jurisdiction
Owned by the of Incorporation
Subsidiary Type of Entity Company or Organization
---------- -------------- ------------ ----------------
IPSCO Saskatchewan Inc. Corporation 100% Canada
IPSCO Steel Inc. Corporation 100% Delaware
IPSCO Tubulars Inc. Corporation 100% Delaware
IPSCO Alabama Ltd. Limited Partnership 100% Alabama
IPSCO Minnesota Inc. Corporation 100% Delaware
IPSCO Sales Inc. Corporation 100% Delaware
Schedule III
-----------------------------------------------------------
Principal Amount of
Initial Purchaser Original Notes
-----------------------------------------------------------
UBS Securities LLC $125,000,000
-----------------------------------------------------------
RBC Dominion Securities Corporation 45,000,000
-----------------------------------------------------------
ABN AMRO Incorporated 7,500,000
-----------------------------------------------------------
CIBC World Markets Corp. 7,500,000
-----------------------------------------------------------
TD Securities (USA) Inc. 7,500,000
-----------------------------------------------------------
▇▇▇▇▇ Fargo Securities, LLC 7,500,000
-----------------------------------------------------------
Total $200,000,000
-----------------------------------------------------------