UNKNOWN, WHETHER ASSERTED OR
UNASSERTED, WHETHER ABSOLUTE OR CONTINGENT, WHETHER ACCRUED OR UNACCRUED,
WHETHER LIQUIDATED OR UNLIQUIDATED, AND WHETHER DUE OR TO BECOME DUE, INCLUDING
ANY LIABILITY FOR TAXES), EXCEPT FOR ANY LIABILITIES UNDER THE TRANSACTION
DOCUMENTS AND THE FINANCING DOCUMENTS TO WHICH SUCH ENTITY IS A PARTY; (C) OWNS
NO REAL OR PERSONAL PROPERTY EXCEPT, WITH RESPECT TO NEW SWEDEN 1, AN
SEK 100,000 CASH DEPOSIT WITH SKANDINAVISKA ENSKILDA BANKEN (PUBL), SHARES OF
MSC, AND THE NEW SWEDEN 1 MSC SUBORDINATED DEBT, AND, WITH RESPECT TO NEW
SWEDEN 2, AN SEK 100,000 CASH DEPOSIT WITH SKANDINAVISKA ENSKILDA BANKEN (PUBL)
AND A QUOTA OF NEW METALS; AND (D) HAS NO OPERATIONS OTHER THAN HOLDING SUCH
PROPERTIES AND BEING A PARTY TO SUCH CONTRACTS.
SECTION 4.19
NO LIQUIDATION; INTENT.
NONE OF MSC, NEW METALS, NEW
CAYMAN, AND THE ACQUIRED ENTITIES HAS COMMENCED ANY VOLUNTARY PROCEEDING OR
FILED ANY PETITION, AND APEX IS NOT AWARE OF THE COMMENCEMENT OF ANY INVOLUNTARY
PROCEEDING OR THE FILING OF ANY INVOLUNTARY PETITION, SEEKING (A) LIQUIDATION,
REORGANIZATION, OR OTHER RELIEF IN RESPECT OF ANY OF MSC, NEW METALS, NEW
CAYMAN, OR THE ACQUIRED ENTITIES FOR ITS DEBTS, OR ANY SUBSTANTIAL PART OF ITS
ASSETS, UNDER ANY APPLICABLE LAW OR (B) APPOINTMENT OF A RECEIVER, TRUSTEE,
CUSTODIAN, SEQUESTRATOR, CONSERVATOR, OR SIMILAR OFFICIAL FOR ANY SUCH ENTITY OR
FOR A SUBSTANTIAL PART OF ITS ASSETS.
APEX AND ITS SUBSIDIARIES ARE NOT
ENTERING INTO THE TRANSACTIONS CONTEMPLATED HEREBY OR BY ANY OF THE TRANSACTION
DOCUMENTS WITH THE INTENT TO HINDER, DELAY, OR DEFRAUD ANY PERSON TO WHICH ANY
SUCH ENTITY IS, OR MAY BECOME, INDEBTED.
SECTION 4.20
NOTICES.
APEX HAS MADE AVAILABLE TO SUMITOMO TRUE,
CORRECT, AND COMPLETE COPIES OF ALL MATERIAL NOTICES AND OTHER DOCUMENTS
DELIVERED UNDER ARTICLE VI OF THE COMMON SECURITY AGREEMENT.
SECTION 4.21
PROJECT INFORMATION AND OTHER INFORMATION FURNISHED.
TO
THE KNOWLEDGE OF APEX, THE PROJECT INFORMATION AND OTHER INFORMATION, FINANCIAL
STATEMENTS, EXHIBITS, AND SCHEDULES FURNISHED IN WRITING BY OR ON BEHALF OF APEX
TO SUMITOMO IN CONNECTION WITH THE NEGOTIATION, PREPARATION, OR DELIVERY OF THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS OR
39
INCLUDED HEREIN OR THEREIN OR DELIVERED PURSUANT HERETO OR THERETO (INCLUDING
THE DOCUMENTS INCLUDED IN THE APEX DISCLOSURE BUNDLE), CONSIDERED TOGETHER, DO
NOT CONTAIN ANY MATERIAL MISREPRESENTATION OR MISSTATEMENT (OR OMIT ANY MATERIAL
FACT OR CIRCUMSTANCE NECESSARY IN ORDER TO MAKE THE INFORMATION CONTAINED
THEREIN NOT MISLEADING); PROVIDED, THAT THE ONLY REPRESENTATIONS AND WARRANTIES
MADE BY APEX TO SUMITOMO UNDER THIS SECTION 4.21 IN RESPECT OF PROJECTIONS,
ESTIMATES, OR OTHER EXPRESSIONS OF VIEW AS TO FUTURE CIRCUMSTANCES INCLUDED IN
THE APEX DISCLOSURE BUNDLE OR SUCH OTHER INFORMATION, FINANCIAL STATEMENTS,
EXHIBITS, AND SCHEDULES IS THAT SUCH PROJECTIONS, ESTIMATES, OR OTHER EXPRESSION
OF VIEW WERE PREPARED IN GOOD FAITH AND WERE BASED ON REASONABLE ASSUMPTIONS AS
TO ALL FACTUAL AND LEGAL MATTERS MATERIALLY RELATED THERETO AS OF THEIR
RESPECTIVE PREPARATION DATES.
ARTICLE V
OTHER COVENANTS
SECTION 5.1
CONFIDENTIALITY.
EACH PARTY SHALL KEEP CONFIDENTIAL,
SHALL CAUSE ITS AFFILIATES TO KEEP CONFIDENTIAL, AND SHALL