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Exhibit 4
CONSOLIDATED EDISON,
INC.
NOTE ASSUMPTION AND EXCHANGE
AGREEMENT
Dated as of June 20,
2008
providing for the assumption
by Consolidated Edison, Inc. of
Senior Secured Notes due 2022
of Hawkeye Funding, Limited
Partnership in exchange for
Senior Unsecured Notes due 2022
of Consolidated Edison,
Inc.
TABLE OF CONTENTS
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| 1. |
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ASSUMPTION AND EXCHANGE OF NOTES, ETC. |
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4 |
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1.1. |
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Assumption of Hawkeye Notes; Authorization of Notes,
Etc. |
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4 |
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1.2. |
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Exchange
of Notes; the Closing |
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4 |
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| 2. |
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HAWKEYE NOTEHOLDER REPRESENTATIONS AND CONSENTS |
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5 |
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2.1. |
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Acquisition for Investment |
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5 |
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2.2. |
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Source of
Funds |
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5 |
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2.3. |
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Ownership
of Hawkeye Notes |
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7 |
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2.4. |
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Consent
and Release |
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7 |
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| 3. |
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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7 |
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3.1. |
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Corporate
Matters |
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7 |
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3.2. |
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Corporate
Power |
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8 |
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3.3. |
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Authorization, Etc. |
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8 |
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3.4. |
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[Intentionally Omitted] |
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8 |
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3.5. |
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Organization and Ownership of Shares of Material
Subsidiaries |
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8 |
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3.6. |
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Financial
Statements |
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9 |
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3.7. |
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Changes |
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9 |
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3.8. |
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Compliance with Law, Other Instruments, Etc. |
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9 |
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3.9. |
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Governmental Authorizations, Etc. |
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10 |
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3.10. |
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Litigation; Observance of Agreements; Statutes and
Orders |
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10 |
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3.11. |
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Taxes |
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10 |
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3.12. |
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Title to
Properties; Leases |
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11 |
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3.13. |
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Licenses,
Permits, Etc. |
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11 |
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3.14. |
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Compliance with ERISA |
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12 |
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3.15. |
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Private
Offering |
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13 |
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3.16. |
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Existing
Indebtedness |
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13 |
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3.17. |
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Foreign
Assets Control Regulations, Etc. |
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13 |
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3.18. |
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No
Undisclosed Fees |
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14 |
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3.19. |
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Potential
Default; Event of Default |
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14 |
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| 4. |
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CONDITIONS TO CLOSING |
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14 |
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4.1. |
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Opinions
of Counsel |
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14 |
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4.2. |
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[Intentionally Omitted] |
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14 |
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4.3. |
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Officer’s Certificates |
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15 |
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4.4. |
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Execution
and Delivery of Documents, Filings |
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15 |
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4.5. |
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Payment
of Counsel Fees |
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16 |
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4.6. |
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Proceedings Satisfactory |
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16 |
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4.7. |
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Legality,
Etc. |
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16 |
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4.8. |
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Private
Placement Numbers |
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17 |
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4.9. |
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Other
Hawkeye Noteholders; Cancellation of Hawkeye Notes |
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17 |
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4.10. |
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Surrender
and Cancellation of CEI Note |
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17 |
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| 5. |
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[INTENTIONALLY OMITTED] |
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| 6. |
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[INTENTIONALLY OMITTED] |
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17 |
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| 7. |
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PAYMENT, REGISTRATION, TRANSFER, EXCHANGE AND REPLACEMENT OF
THE NOTES |
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17 |
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7.1. |
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Place of
Payment |
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17 |
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7.2. |
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Home
Office Payment |
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17 |
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7.3. |
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Registration of Notes |
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18 |
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7.4. |
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Transfer
and Exchange of Notes |
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18 |
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7.5. |
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Replacement of Notes |
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18 |
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| 8. |
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PREPAYMENT OF THE NOTES |
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19 |
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8.1. |
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Required
Prepayments on Note Payment Dates |
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19 |
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8.2. |
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Optional
Prepayment of Notes |
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19 |
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8.3. |
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Notice of
Prepayment |
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20 |
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8.4. |
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Maturity;
Surrender, Etc. |
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20 |
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8.5. |
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Selection
of Notes for Prepayment |
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20 |
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8.6. |
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Purchase
of Notes |
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21 |
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8.7. |
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Make-Whole Premium |
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21 |
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| 9. |
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AFFIRMATIVE COVENANTS |
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22 |
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9.1. |
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Ownership
of Core Electricity Distribution Business |
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22 |
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9.2. |
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[Intentionally Omitted] |
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22 |
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9.3. |
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Financial
Information |
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22 |
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9.4. |
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[Intentionally Omitted] |
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24 |
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9.5. |
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Inspection |
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24 |
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9.6. |
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Compliance with Laws |
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25 |
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9.7. |
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Priority
of Obligations |
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25 |
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9.8. |
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Maintenance of Properties |
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25 |
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9.9. |
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Payment
of Taxes and Claims |
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25 |
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9.10. |
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Corporate
Existence, Etc. |
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26 |
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9.11. |
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Transaction Expenses, Etc. |
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26 |
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9.12. |
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Confirmation of Indemnification and Guaranty
Obligations |
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27 |
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| 10. |
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NEGATIVE COVENANTS |
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27 |
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10.1. |
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Mergers
and Consolidations |
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27 |
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10.2. |
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Consolidated Debt to Consolidated Capital |
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28 |
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| 11. |
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DEFAULTS; REMEDIES |
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28 |
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11.1. |
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Events of
Default |
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28 |
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11.2. |
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Default
Remedies |
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30 |
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11.3. |
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Notice of
Default |
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31 |
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| 12. |
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INTERPRETATION OF THIS AGREEMENT |
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31 |
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12.1. |
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Terms
Defined |
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31 |
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| 13. |
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MISCELLANEOUS |
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37 |
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13.1. |
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Notices |
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37 |
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13.2. |
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Severability |
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38 |
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13.3. |
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Survival |
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38 |
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13.4. |
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Successors and Assigns |
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38 |
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13.5. |
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Amendment
and Waiver |
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38 |
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13.6. |
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Jurisdiction and Process; Waiver of Jury Trial |
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39 |
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13.7. |
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Governing
Law |
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40 |
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13.8. |
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Counterparts |
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40 |
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13.9. |
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Confidentiality |
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40 |
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| SCHEDULE I |
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Hawkeye Noteholder Information
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| EXHIBIT A |
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Form of Note
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| EXHIBIT B-1 |
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Form of Opinion of special counsel for the Company pursuant to
Section 13(c)(v)(z) of the Hawkeye Note Purchase
Agreements
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| EXHIBIT B-2 |
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Form of Opinion of special counsel for the Company and the
Lessee
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| EXHIBIT B-3 |
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Form of Opinion of the general counsel for the
Company
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| EXHIBIT B-4 |
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Form of Opinion of internal counsel for the Lessee
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| EXHIBIT B-5 |
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Form of Opinion of counsel for the Trustee
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| EXHIBIT B-6 |
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Form of Opinion of special counsel for Hawkeye and ML
Leasing
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| EXHIBIT B-7 |
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Form of Opinion of special counsel for the Hawkeye
Noteholders
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| EXHIBIT C |
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Form of Omnibus Assignment and Assumption Agreement
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| EXHIBIT D |
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Form of Quitclaim Deed
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| EXHIBIT E |
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Form of Bill of Sale
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| EXHIBIT F |
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Form of Release Deed (re the Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing and the Subordination,
Non-Disturbance and Attornment Agreement)
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| EXHIBIT G |
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Form of Master Termination Agreement
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| EXHIBIT H |
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Form of Termination of Notice of Lease
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| EXHIBIT I |
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Form of Indemnity Letter
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| SCHEDULE 3.5 |
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Organization and Ownership of Shares of Material
Subsidiaries
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| SCHEDULE 3.7 |
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Changes
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| SCHEDULE 3.11 |
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Taxes
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| SCHEDULE 8.1 |
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Amortization Schedule
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CONSOLIDATED EDISON,
INC.
4 Irving Place
New York, New York
10003
Re: 8.71% Senior
Unsecured Notes due 2022
as of June 20,
2008
TO THE SEVERAL HAWKEYE
NOTEHOLDERS WHOSE NAMES APPEAR
IN
THE ACCEPTANCE FORM AT THE
END
HEREOF
Ladies and Gentlemen:
Consolidated Edison, Inc.
(the “ Company ”), a New York corporation,
hereby agrees with you (sometimes individually a “ Hawkeye
Noteholder ” and collectively the “ Hawkeye
Noteholders ”) as follows:
BACKGROUND
Hawkeye Funding, Limited
Partnership, a Delaware limited partnership (“ Hawkeye
”) formed by Hawkeye Funding, Inc., a Delaware corporation,
has heretofore issued and sold $340,971,000 aggregate principal
amount of its 8.71% Senior Secured Notes due 2022 (the “
Hawkeye Notes ”) pursuant to the several Note Purchase
Agreements dated as of November 14, 2000, as heretofore
supplemented and amended, entered into by Hawkeye with the
institutional investors listed in Schedule I thereto
(said Note Purchase Agreements as so supplemented and amended are
called the “ Hawkeye Note Purchase Agreements
”). The Hawkeye Notes remain outstanding in the principal
amounts set forth opposite each Hawkeye Noteholder’s name on
Schedule I hereof and in an aggregate principal amount equal
to $326,287,886.85.
Hawkeye used the proceeds
from the sale of the Hawkeye Notes to construct and equip a
generating facility consisting of two GE Frame 7FA gas-fired
combustion turbine generators (with an aggregate generating
capacity of approximately 525 megawatts), two heat recovery steam
generators, one steam turbine generator and ancillary equipment
(said generating facility, together with all improvements and
equipment constructed pursuant to the EPC Contract and the
Agreement for Lease respectively referred to below, and any
replacements thereof, are collectively called the “
Facility ”). The Facility is located on approximately
23 acres of land in the Town of Newington, Rockingham County, New
Hampshire, more particularly described in Exhibit A to the Mortgage
referred to below (the “ Site ”). Hawkeye
acquired fee title to the Site pursuant to (i) the Warranty
Deed dated May 23, 2000, from Mareld Company, Inc., Cameron
Real Estate, Inc. and Fuel Storage Corporation, as grantors, to
Hawkeye, as grantee, and (ii) the Warranty Deed, dated
August 4, 2000, from Northeast Medical Properties, Inc., as
grantor, to Hawkeye, as grantee (collectively, the “
Deeds ”). The Facility, the Site, and the related
easements and other rights and appurtenances are collectively
called the “ Project ”.
The Facility was constructed
pursuant to the EPC Contract, entered into by Hawkeye with
Duke/Fluor Daniel, a North Carolina partnership (“ Fluor
Daniel ”). Fluor Corporation and Duke Energy Capital
guaranteed the obligations of Fluor Daniel under the EPC Contract
pursuant to the EPC Guaranty referred to in the Agreement for
Lease. Newington Energy, L.L.C., a Delaware limited liability
company (the “ Lessee ”), and General Electric
International, Inc., a Delaware corporation (“ GEI
”), entered into an Operation and Maintenance Agreement dated
as of December 20, 1999 (the “ O&M Agreement
”) in respect of the Facility, and General Electric Company
guaranteed the obligations of GEI under the O&M Agreement
pursuant to the GE Guaranty referred to in the Agreement for Lease.
Such EPC Contract, the EPC Guaranty, the O&M Agreement, the GE
Guaranty and other agreements (defined in the Agreement for Lease
and the Lease as Project Contracts) are collectively referred to
herein as the “ Project Contracts ”.
In connection with the
issuance and sale of the Hawkeye Notes: (i) Hawkeye and
Newington Energy, L.L.C. (the “ Lessee ”)
entered into an Agreement for Lease dated as of November 14,
2000, as heretofore supplemented and amended (as so supplemented
and amended and as further supplemented and amended as hereinafter
provided the “ Agreement for Lease ”), pursuant
to which the Lessee undertook, among other things, to construct and
equip the Facility on behalf of Hawkeye and to lease the Project
pursuant to the Lease referred to below; (ii) Hawkeye and the
Lessee entered into a Lease Agreement dated as of November 14,
2000, as heretofore supplemented and amended (as so supplemented
and amended and as further supplemented and amended as hereinafter
provided the “ Lease ”), pursuant to which the
Lessee has leased the Project from Hawkeye commencing on
December 9, 2002; and (iii) the Lessee and Hawkeye
entered into a Pledge Agreement dated as of November 14, 2000
as heretofore supplemented and amended (as so supplemented and
amended and as further supplemented and amended as hereinafter
provided the “ Pledge Agreement ”), pursuant to
which the Lessee pledged and created a security interest in all of
the Lessee’s right, title and interest in and to the
Collateral (as defined in the Pledge Agreement) described therein
(including, without limitation, certain Project Contracts, certain
Governmental Actions and Permits, the designs, plans and
specifications relating to the Project owned by the Lessee and
certain insurance, indemnity, warranty and guaranty proceeds) as
security for the Lessee’s obligations under the Agreement for
Lease and the Lease.
In connection with the
issuance and sale of the Hawkeye Notes (i) the Company
executed and delivered a Guaranty dated November 14, 2000 (the
“ Guaranty ”), pursuant to which the Company
unconditionally guaranteed certain obligations of the Lessee under
the Agreement for Lease and the Lease, including without limitation
all indemnification obligations of the Lessee in respect of the
Project, and (ii) ML Leasing Equipment Corp., a Delaware
corporation (“ Merrill Leasing ”), entered into
a letter agreement with Hawkeye dated November 14, 2000, as
assigned to Merrill Lynch & Co., Inc., a Delaware
corporation (“ Merrill ”) pursuant to the terms
of that certain Assignment and Assumption Agreement dated as of
September 21, 2005 between Merrill Leasing and Merrill (as
assigned and amended to date, the “ Merrill Shortfall
Agreement ”), pursuant to which Merrill agreed to pay
Hawkeye certain amounts in connection with a shortfall of proceeds
from the sale or deemed sale of the Project in certain
circumstances.
2
Hawkeye and the Company also
agreed that Hawkeye could from time to time make loans to the
Company from the proceeds of the issuance of the Hawkeye Notes to
the extent such proceeds were not used to make Advances under the
Agreement for Lease or to pay Project Costs or other Financing
Costs (as such terms are defined in the Agreement for Lease), which
loans were evidenced by that certain Promissory Note dated
November 16, 2000 from the Company to Hawkeye (the “
CEI Note ”). As of the date hereof, no amounts are
outstanding under the CEI Note.
The Hawkeye Notes are secured
by an Indenture of Trust, Security Agreement and Collateral
Assignment of Contracts dated as of November 14, 2000, as
heretofore supplemented and amended (as so supplemented and amended
the “ Collateral Indenture ”), from Hawkeye to
The Bank of New York, as collateral trustee for the holders from
time to time of the Hawkeye Notes (the “ Trustee
”), covering, among other things, Hawkeye’s right,
title and interest in and to the Facility, the Agreement for Lease,
the Lease, the Operating Account, the CEI Note, the Guaranty, the
Merrill Shortfall Agreement, the Pledge Agreement, the Project
Contracts and other Collateral (as defined in the Collateral
Indenture). The Hawkeye Notes are also secured by a Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing from
Hawkeye to the Trustee, as Mortgagee, dated as of November 14,
2000, as heretofore supplemented and amended (as so supplemented
and amended, the “ Mortgage ”), covering, among
other things, Hawkeye’s right, title and interest in and to
the Facility and the Site.
Pursuant to
Section 13(a) of the Lease, the Lessee delivered to Hawkeye a
notice dated March 20, 2008 (the “ Purchase Option
Notice ”) informing Hawkeye of its intent to purchase the
Project as a whole for an amount equal to its Adjusted Acquisition
Cost on the Basic Rent Payment Date occurring on June 20, 2008
(the “ Purchase ”). In connection with the
Purchase, Hawkeye and the Lessee intend to terminate the Agreement
for Lease, the Lease, the Pledge Agreement, the Merrill Shortfall
Agreement, the CEI Note, the Guaranty, the Collateral Indenture,
the Mortgage and certain ancillary documents delivered by Hawkeye,
the Lessee, the Company, Merrill Leasing and the Trustee in
connection with the Lease and the Hawkeye Note Purchase
Agreements.
Pursuant to
Section 13(a) of the Lease and Section 13(a) of the
Hawkeye Note Purchase Agreements, the Lessee and the Company have
elected to effect the Purchase Option Assumption (as defined
therein), pursuant to which the purchase price for the
Lessee’s Purchase of the Project will be paid through a
combination of (i) cash and (ii) the assumption by the
Company of each of the outstanding Hawkeye Notes. The Lessee and
the Company provided notice of such election to Hawkeye pursuant to
a notice dated May 1, 2008, a copy of which Hawkeye included
in its Purchase Option Assumption Notice (as defined in
Section 13(a) of the Hawkeye Note Purchase Agreements) dated
May 6, 2008, previously delivered by the Trustee to each of
the Hawkeye Noteholders.
The Company now proposes that
the Lessee acquire the Project from Hawkeye and the Company assume
the obligations of Hawkeye under the Hawkeye Notes and the Hawkeye
Note Purchase Agreements. In connection therewith the Company also
proposes to (i) amend and restate the Hawkeye Note Purchase
Agreements in their entirety and to combine the Hawkeye Note
Purchase Agreements as so amended and restated into one Note
Assumption
3
and Exchange Agreement, all pursuant to
this Agreement, (ii) terminate the Collateral Indenture, the
Agreement for Lease, the Lease, the Pledge Agreement, the CEI Note,
the Guaranty, the Consent and Agreement of the Company, the Consent
and Agreement of the Lessee, the Consent and Agreement of Merrill
Leasing, the Management Agreement dated as of November 14,
2000, between Hawkeye and Merrill Leasing and the Reimbursement
Agreement, dated as of November 14, 2000, among Hawkeye, as
lessor, the Lessee, as lessee, and Merrill Leasing. The Company and
Hawkeye also propose that, concurrently with such assumption,
Hawkeye, Merrill Leasing and Merrill be released from their
respective obligations under the Hawkeye Note Purchase Agreements,
the Collateral Indenture, the other Finance Documents (as defined
in the Hawkeye Note Purchase Agreements) to which they are party
and the Subordination, Non-Disturbance and Attornment Agreement
dated as of November 20, 2000, as the same has been amended
from time to time, by and among the Lessee, Hawkeye and the Trustee
(as amended, the “ SNDA ”).
| 1. |
ASSUMPTION AND EXCHANGE OF NOTES, ETC. |
| 1.1. |
Assumption of Hawkeye Notes; Authorization of Notes,
Etc. |
The Company and the
Noteholders agree to amend and restate the Hawkeye Note Purchase
Agreements in their entirety and to combine the Hawkeye Note
Purchase Agreements as so amended and restated into one Note
Assumption and Exchange Agreement, all pursuant to this Agreement.
The Company hereby unconditionally and expressly assumes the due
and punctual payment of the unpaid principal of and premium, if
any, and interest and all other amounts on all of the Hawkeye Notes
and the due and punctual performance of all obligations of Hawkeye
under the Hawkeye Note Purchase Agreements, as amended and restated
by this Agreement. The Company agrees to perform and observe each
and every one of the covenants, rights, promises, agreements,
terms, conditions, obligations, duties and liabilities of Hawkeye
under and in respect of the Hawkeye Notes and the Hawkeye Note
Purchase Agreements, as so amended and restated, and under any
other documents, instruments or agreements executed and delivered
or furnished in connection therewith.
In furtherance of the
foregoing, and in order to evidence the indebtedness assumed
hereunder by the Company as currently evidenced by the Hawkeye
Notes, the Company has duly authorized an issue of $326,287,886.85
aggregate principal amount of its Senior Unsecured Notes, which
Notes shall be substantially in the form of Exhibit A.
As used herein the term
“ Notes ” means all notes originally issued and
delivered pursuant to this Agreement and the term “
Hawkeye Notes ” means all notes originally delivered
under the Hawkeye Note Purchase Agreements, and each such term
includes all notes delivered in substitution or exchange for any of
such notes and, where applicable, includes the singular number as
well as the plural; and the terms “ Note, ” and
“ Hawkeye Note, ” mean one of the Notes or
Hawkeye Notes, as applicable.
| 1.2. |
Exchange of Notes; the Closing. |
Subject to the terms of this
Agreement and in furtherance of the Company’s assumption of
the Hawkeye Notes, the Company hereby agrees to deliver to you
Notes in the
4
aggregate principal amount or amounts
set forth opposite your name in Schedule I hereto, upon
surrender by you in exchange therefor of Hawkeye Notes in the same
unpaid principal amount or amounts as set forth opposite your name
in Schedule I .
The closing of the assumption
and surrender of the Hawkeye Notes and the delivery of Notes in
exchange therefor under this Agreement will be held at the office
of Winston & Strawn LLP, 200 Park Avenue, New York,
NY 10166, at 10:00 A.M. at a closing (the “
Closing ”). The Closing will be on June 20, 2008.
At the Closing the Company will deliver to you one or more Notes,
registered in your name or the name of your nominee, in any
denominations (integral multiples of $100,000 or, if less, in the
amount of the unpaid principal of the corresponding Hawkeye Note),
in the aggregate principal amount or amounts to be acquired by you,
all as you may specify by timely notice to the Company (or, in the
absence of such notice, one Note for each Hawkeye Note being
surrendered by you, registered in the same name as such Hawkeye
Note), duly executed and dated December 30, 2007 (the most
recent interest payment date on the Hawkeye Notes), against
surrender of the Hawkeye Notes to be exchanged by you.
If at the Closing the Company
shall fail to tender the Notes to be delivered to you as provided
in this Section 1.2, or any of the conditions specified in
Section 4 hereof shall not have been fulfilled to your
satisfaction, you shall, at your election, be relieved of all
further obligations under this Agreement, without thereby waiving
any rights you may have by reason of such failure or such
nonfulfillment.
| 2. |
HAWKEYE NOTEHOLDER REPRESENTATIONS AND
CONSENTS. |
| 2.1. |
Acquisition for Investment. |
You severally represent that
you are acquiring Notes in exchange for your Hawkeye Notes at the
Closing for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or
trust funds and not with a view to the distribution thereof,
provided that the disposition of your or their property
shall at all times be within your or their control. You understand
that the Notes have not been registered under the Securities Act
and may be resold only if registered pursuant to the provisions of
the Securities Act or if an exemption from registration is
available, except under circumstances where neither such
registration nor such an exemption is required by law, and that the
Company is not required to register the Notes. Your exchange of
your Hawkeye Notes for the Notes at the Closing will constitute
your confirmation of such representation.
You also severally represent
that in connection with your acquisition of Notes in exchange for
Hawkeye Notes you have had an opportunity to request and obtain
such information as you have required regarding the
Company.
You severally represent that
at least one of the following statements is an accurate
representation as to each source of the Hawkeye Notes (a “
Source ”) to be surrendered by you in exchange for the
Notes to be acquired by you hereunder:
(a) the Source is an
“insurance company general account,” as such term is
defined in the United States Department of Labor’s Prohibited
Transaction Exemption (“ PTE ”) 95-60 in respect
of which the reserves and liabilities (as defined by the annual
statement for life insurance companies approved by the National
Association of Insurance Commissioners (the “ NAIC Annual
Statement ”)) for the general account contract(s) held by
or on behalf of any employee benefit plan together with the amount
the reserves and liabilities for the general account contract(s)
held by or on behalf of any other employee benefit plans maintained
by the same employer (or affiliate thereof as defined in PTE 95-60)
or by the same employee organization in the general account do not
exceed 10% of the total reserves and liabilities of the general
account (exclusive of separate account liabilities) plus surplus as
set forth in the NAIC Annual Statement filed with your state of
domicile; or
5
(b) the Source is a separate
account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or
credited, to any employee benefit plan (or its related trust) that
has any interest in such separate account (or to any participant or
beneficiary of such plan (including any annuitant)) are not
affected in any manner by the investment performance of the
separate account; or
(c) the Source is either
(i) an insurance company pooled separate account, within the
meaning of PTE 90-1, or (ii) a bank collective investment
fund, within the meaning of PTE 911-38 and, except as you have
disclosed to the Company in writing pursuant to this clause (c), no
employee benefit plan or group of plans maintained by the same
employer or employee organization beneficially owns more than 10%
of all assets allocated to such pooled separate account or
collective investment fund; or !
(c) the Source constitutes
assets of an “investment fund” (within the meaning of
Part V of PTE 84-14 (the “ QPAM Exemption ”))
managed by a “qualified professional asset manager” or
“QPAM” (within the meaning of Part V of the QPAM
Exemption), no employee benefit plan’s assets that are
included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the
same employer or by an affiliate (within the meaning of Section
V(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed 20% of the
total client assets managed by such QPAM, the conditions of Part
I(c) and (g) of the QPAM Exemption are satisfied, neither the
QPAM nor a person controlling or controlled by the QPAM (applying
the definition of “control” in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company and the Lessee in writing
pursuant to this clause (c); or
(d) the Source constitutes
assets of a “plan(s)” (within the meaning of Section IV
of PTE 96-23 (the “INHAM Exemption” )) managed
by an “in-house asset manager” or “INHAM”
(within the meaning of Part IV of the INHAM Exemption), the
conditions of Part I(a), (g) and (h) of the INHAM
Exemption are satisfied, neither the INHAM nor a person controlling
or controlled by the INHAM (applying the definition of
“control” in
6
Section IV(d) of the INHAM
Exemption) owns a 5% or more interest in the Company and
(i) the identity of such INHAM and (ii) the name(s) of
the employee benefit plan(s) whose assets constitute the Source
have been disclosed to the Company in writing pursuant to this
clause (d); or
(e) the Source is a
governmental plan; or
(f) the Source is one or more
employee benefit plans, or a separate account or trust fund
comprised of one or more employee benefit plans, each of which has
been identified to the Company or the Lessee in writing pursuant to
this clause (f); or
(g) the Source does not
include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As used in this Section 2.2, the
terms “ employee benefit plan ,” “
governmental plan ” and “ separate
account ” shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
| 2.3. |
Ownership of Hawkeye Notes. |
You severally represent to
the Company that you are the beneficial owner of Hawkeye Notes in
the unpaid principal amount or amounts set forth opposite your name
in Schedule I hereto and you have received all
principal and interest payments due on account of such Hawkeye
Notes up to and including December 30, 2007.
| 2.4. |
Consent and Release. |
Subject to the satisfaction
of the conditions to its obligation to surrender Hawkeye Notes in
exchange for Notes at the Closing as hereinafter provided, each
Hawkeye Noteholder severally (i) consents to, and approves the
terms of, the Omnibus Assignment and Assumption Agreement, the
Master Termination Agreement and the Release Deed and
(ii) instructs the Trustee to execute and deliver such
instruments and documents in connection with any of the
transactions described herein as may be required or contemplated
for the Closing by this Agreement. Each Hawkeye Noteholder’s
surrender of its respective Hawkeye Notes at the Closing in
exchange for Notes shall be deemed to constitute such Hawkeye
Noteholder’s release of Hawkeye from all of its duties and
obligations under the Hawkeye Note Purchase Agreements and the
Hawkeye Notes so surrendered.
| 3. |
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. |
The Company represents and
warrants to you that:
The Company is a corporation
duly organized, validly existing and in good standing under the
laws of the State of New York, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which
such qualification is required by law, except where the failure to
so qualify would not materially impair the ability of the Company
to perform its obligations under this Agreement, the Notes and the
Indemnity Letter.
7
The Company has full
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Notes and the Indemnity
Letter and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement, the
Notes and the Indemnity Letter.
This Agreement, the Notes and
the Indemnity Letter have been duly authorized by all necessary
corporate and shareholder action on the part of the Company, and
this Agreement, each of the Notes and the Indemnity Letter
constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally
and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
| 3.4. |
[Intentionally Omitted] |
| 3.5. |
Organization and Ownership of Shares of Material
Subsidiaries. |
(a) Schedule 3.5 to
this Agreement contains on the date hereof complete and correct
lists of (i) the Material Subsidiaries, showing, as to each
such Material Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of
each class of its capital stock or similar equity interests
outstanding owned by the Company and each other Subsidiary of the
Company and (ii) the Company’s directors and senior
officers.
(b) All of the outstanding
shares of capital stock or similar equity interests of each
Material Subsidiary shown in Schedule 3.5 as being owned by
the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 3.5 ).
(c) Each Material Subsidiary
is a corporation or other legal entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or
other legal entity and is in good standing in each jurisdiction in
which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on (i) the ability
of the Company to perform its obligations under this Agreement in a
timely manner, (ii) the business, assets, properties,
financial condition, operations or prospects of the Company, or
(iii) the rights or interests of the Noteholders
8
under this Agreement. Each
such Material Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to
own or hold under lease and to transact the business it transacts
and proposes to transact.
(d) As of the date hereof, no
Material Subsidiary is a party to or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the
agreements listed on Schedule 3.5 and customary limitations
imposed by corporate law statutes and applicable regulatory
requirements, including without limitation the Energy Policy Act of
2005, as amended, and similar provisions of state and local law)
restricting the ability of such Material Subsidiary to pay
dividends out of profits or make any other similar distributions of
profits to the Company or any of its Subsidiaries that owns
outstanding shares of capital stock of such Material
Subsidiary.
| 3.6. |
Financial Statements. |
The Company has furnished to
you copies of its (i) Annual Report on Form 10-K for the year
ended December 31, 2007 and (ii) Quarterly Report on Form
10-Q for the quarter ended March 31, 2008. The consolidated
financial statements of the Company contained in such documents
(including in each case the related schedules and notes) fairly
present in all material respects the consolidated financial
position of the Company and its Consolidated Subsidiaries as of the
respective dates of such financial statements and the consolidated
results of their operations and cash flows for the respective
periods of such financial statements and have been prepared in
accordance with GAAP consistently applied throughout the periods
involved except as set forth in the notes thereto (subject, in the
case of any interim financial statements, to normal year-end
adjustments). The Company and its Subsidiaries do not have any
Material liabilities that are not disclosed on such financial
statements.
Except as disclosed in public
filings made by the Company with the SEC after the date of the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2007 and prior to the date hereof, copies of
which are attached as Schedule 3.7 , since December 31,
2007, there has been (i) no material adverse change in the
business, assets, properties, revenues, financial condition,
operations or prospects of the Company or any Material Subsidiary,
and (ii) no change that individually or in the aggregate could
reasonably be expected to have a material adverse effect on
(a) the ability of the Company to perform its obligations
under this Agreement, the Notes and the Indemnity Letter in a
timely manner, (b) the business, assets, properties, financial
condition, operations or prospects of the Company or any Material
Subsidiary, or (c) the rights or interests of the Noteholders
under this Agreement, the Notes or the Indemnity Letter.
| 3.8. |
Compliance with Law, Other Instruments, Etc. |
The execution, delivery and
performance by the Company of this Agreement, the Notes and the
Indemnity Letter will not (a) contravene, result in any breach
of, or constitute a default under, or result in the creation of any
Lien in respect of any property of the Company or any of its
Subsidiaries under, any indenture, mortgage, deed of trust, loan,
purchase or credit
9
agreement, lease, corporate charter or
by-laws, or any other Material agreement or instrument to which the
Company or any of its Subsidiaries is bound or by which the Company
or any of its Subsidiaries or any of their respective properties
may be bound or affected, (b) conflict with or result in a
breach of any of the terms, conditions or provisions of any order,
judgment, decree or ruling of any court, arbitrator or Governmental
Authority applicable to the Company or any of its Subsidiaries or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company
or any of its Subsidiaries.
| 3.9. |
Governmental Authorizations, Etc. |
No consent, approval or
authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this
Agreement, the Notes or the Indemnity Letter.
| 3.10. |
Litigation; Observance of Agreements; Statutes and
Orders. |
(a) Except as disclosed in
public filings made by the Company with the SEC after the date of
the Company’s Annual Report on Form 10-K for the year ended
December 31, 2007 and prior to the date hereof, copies of
which are attached as Schedule 3.7 (including the
consolidated financial statements incorporated therein by
reference), since December 31, 2007, there are no actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
Subsidiaries or any property of the Company or any of its
Subsidiaries in any court or before any arbitrator of any kind or
before or by any Governmental Authority, which, if adversely
determined, could reasonably be expected to have a material adverse
effect on (i) the ability of the Company to perform its
obligations under this Agreement, the Notes or the Indemnity
Letter, (ii) the business, assets, properties, financial
condition, operations or prospects of the Company, or
(iii) the rights or interests of the Noteholders under this
Agreement, the Notes or the Indemnity Letter.
(b) Neither the Company nor
any of its Subsidiaries is in default under any term of any
agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority applicable to it, or is in
violation of any applicable law, ordinance, rule or regulation
(including without limitation Environmental Requirements) of any
Governmental Authority, which default or violation, individually or
in the aggregate, could reasonably be expected to have a material
adverse effect on (i) the ability of the Company to perform
its obligations under this Agreement, the Notes or the Indemnity
Letter, (ii) the business, assets, properties, financial
condition, operations or prospects of the Company, or
(iii) the rights or interests of the Noteholders under this
Agreement, the Notes or the Indemnity Letter.
Except as disclosed in
(i) the Company’s Annual Report on Form 10-K for the
year ended December 31, 2007 (including the consolidated
financial statements incorporated therein by reference),
(ii) the Company’s Quarterly Report on Form 10-Q for the
quarter ended
10
March 31, 2008 (including the
consolidated financial statements incorporated therein by
reference), and (iii) filings made by the Company with the SEC
after the date of the Company’s Quarterly Report on Form 10-Q
for the quarter ended March 31, 2008 and prior to the date
hereof, copies of which are attached as Schedule 3.11 , the
Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other
taxes and assessments levied upon them or their properties, assets,
income or franchises, to the extent such taxes and assessments have
become due and payable and before they have become delinquent,
except for any taxes and assessments (a) the nonpayment of
which could not, individually or in the aggregate, be expected to
have a material adverse effect on (i) the ability of the
Company to perform its obligations under this Agreement, the Notes
and the Indemnity Letter, (ii) the business, assets,
properties, financial condition, operations or prospects of the
Company, or (iii) the rights or interests of the Noteholders
under this Agreement, the Notes or the Indemnity Letter; or
(b) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings
and with respect to which the Company or any of its Subsidiaries,
as the case may be, has established adequate reserves in accordance
with GAAP.
| 3.12. |
Title to Properties; Leases. |
The Company and its Material
Subsidiaries have good and sufficient title to their respective
properties that individually or in the aggregate are Material to
their respective businesses, including all such properties
reflected in the most recent audited balance sheet included in the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2007 or purported to have been acquired by the
Company or any Material Subsidiary after the date of such balance
sheet (except as sold or otherwise disposed of (i) in the
ordinary course of business, (ii) in the manner disclosed on
Form 8-K dated May 8, 2008 filed by the Company with the SEC
or (iii) in the manner disclosed on Form 8-K dated
December 10, 2007 filed by the Company with the SEC). All
leases of the Company and its Material Subsidiaries that
individually or in the aggregate are Material to their respective
businesses are valid and subsisting and are in full force and
effect in all material respects.
| 3.13. |
Licenses, Permits, Etc. |
(a) The Company and its
Material Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, proprietary software,
copyrights, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material,
without known conflict with the rights of others.
(b) No product of the Company
or any Material Subsidiary infringes in any Material respect on any
license, permit, franchise, authorization, patent, proprietary
software, copyright, service mark, trademark, trade name or other
right owned by any other Person.
(c) There is no Material
violation by any Person of any right of the Company or any of its
Material Subsidiaries with respect to any patent, proprietary
software, copyright, service mark, trademark, trade name or other
right owned or used by the Company or any of its Material
Subsidiaries.
11
| 3.14. |
Compliance with ERISA. |
(a) The Company and each
ERISA Affiliate have operated and administered each Plan in
compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and could not reasonably be
expected to result in a material adverse effect on (i) the
ability of the Company to perform its obligations under this
Agreement, the Notes and the Indemnity Letter, (ii) the
business, assets, properties, financial condition, operations or
prospects of the Company, or (iii) the rights or interests of
the Noteholders under this Agreement, the Notes and the Indemnity
Letter. Neither the Company nor any ERISA Affiliate has incurred
any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit
plans (as defined in section 3 of ERISA), other than such
liabilities as would not, individually or in the aggregate, be
Material, and no event, transaction or condition has occurred or
exists that could reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA
Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in
either case pursuant to Title I or IV of ERISA or to such penalty
or excise tax provisions or to Section 401(a)(29) or 412 of
the Code, other than such liabilities or Liens as would not,
individually or in the aggregate, be Material.
(b) The present value of the
aggregate benefit liabilities under each of the Plans (other than
Multiemployer Plans), determined on the basis of the actuarial
assumptions specified for funding purposes in such Plan’s
most recent actuarial valuation report, did not exceed the
aggregate current value of the assets of such Plan allocable to
such benefit liabilities. The term “benefit
liabilities” has the meaning specified in section 4001
of ERISA and the terms “current value” and
“present value” have the meaning specified in
section 3 of ERISA.
(c) The Company and each
ERISA Affiliate have not incurred withdrawal liabilities (and are
not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are
Material.
(d) The expected
postretirement benefit obligation (determined as of the last day of
the Company’s most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106,
without regard to liabilities attributable to continuation coverage
mandated by section 4980B of the Code) of the Company and its
Subsidiaries is reflected in the financial statements included in
the Annual Report of the Company on Form 10-K, as of the respective
dates thereof.
(e) The execution and
delivery of this Agreement will not involve any transaction that is
subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to
Section 4975(c)(1)(A)-(D) of the Code. The representation
by the Company in the first sentence of this Section 3.14(e)
is made in reliance upon and subject to the accuracy of the
representations of the Noteholders in Section 2.2 of this
Agreement as to the sources of the funds used to pay the purchase
price of the Hawkeye Notes to be surrendered by them in exchange
for the Notes hereunder.
12
Since 2005, neither the
Company nor anyone authorized to act on its behalf has offered the
Notes or any similar securities for sale or exchange to, or
solicited any offer to buy or exchange any of the same from, or
otherwise approached or negotiated in respect thereof with, any
Person other than the Hawkeye Noteholders. Neither the Company nor
anyone authorized to act on its behalf has taken, or will take, any
action that would subject the execution and delivery of this
Agreement or the issuance or exchange of the Notes to the
registration requirements of Section 5 of the Securities
Act.
| 3.16. |
Existing Indebtedness. |
Neither the Company nor any
Subsidiary is in default, and no waiver of default is currently in
effect, in the payment of any principal or interest on any
Indebtedness of the Company or such Subsidiary and no event or
condition exists with respect to any such Indebtedness of the
Company or any Subsidiary that would permit one or more Persons to
cause such Indebtedness to become due and payable before its stated
maturity, except in each case for any default, event or condition
which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on (i) the ability
of the Company to perform its obligations under this Agreement, the
Notes and the Indemnity Letter, (ii) the business, assets,
properties, financial condition, operations or prospects of the
Company, or (iii) the rights or interests of the Noteholders
under this Agreement, the Notes and the Indemnity
Letter.
| 3.17. |
Foreign Assets Control Regulations, Etc. |
(a) Neither the exchange of
the Hawkeye Notes for the Notes by the Company hereunder nor its
use of the proceeds thereof will violate the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(b) Neither the Company nor
any Subsidiary (i) is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the
Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order or (ii) engages in any dealings or
transactions with any such Person. The Company and its Subsidiaries
are in compliance, in all material respects, with the USA Patriot
Act.
(c) No part of the proceeds
from the exchange of the Hawkeye Notes for the Notes hereunder will
be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a
political party, candidate for political office, or anyone else
acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of
the United States Foreign Corrupt Practices Act of 1977, as
amended.
13
| 3.18. |
No Undisclosed Fees. |
The Company has not directly
or indirectly, paid or caused to be paid any consideration (as
supplemental or additional interest, a fee or otherwise) to any
holder of Hawkeye Notes in order to induce such holder to enter
into this Agreement, surrender its Hawkeye Notes or give its
consent or take any other action in connection with the
transactions contemplated hereby, nor has the Company agreed to
make any such payment.
| 3.19. |
Potential Default; Event of Default. |
After giving effect to the
transactions contemplated by this Agreement and each of the other
agreements described in Section 4.4 hereof, no Potential
Default or Event of Default with respect to the Company shall have
occurred.
| 4. |
CONDITIONS TO CLOSING. |
Your several obligations to
surrender Hawkeye Notes in exchange for Notes to be delivered to
you at the Closing shall be subject to the satisfaction of the
following conditions precedent:
| 4.1. |
Opinions of Counsel. |
You shall have received
from
(a) Bingham McCutchen LLP,
special counsel for the Company, pursuant to
Section 13(c)(v)(z) of the Hawkeye Note Purchase
Agreements,
(b) Bingham McCutchen LLP,
special counsel for the Company and the Lessee,
(c) Charles E. McTiernan,
Jr., Esq., general counsel for the Company,
(d) Andrew Scher, Esq.,
internal counsel for the Lessee,
(e) Emmet, Marvin &
Martin LLP, counsel to the Trustee,
(f) Winston & Strawn
LLP, special counsel for Hawkeye and ML Leasing, and
(g) Willkie Farr &
Gallagher LLP, your special counsel,
closing opinions, dated the date of the
Closing and substantially in the respective forms set forth in
Exhibits B-1 , B-2 , B-3 , B-4 ,
B-5, B-6 and B-7 hereto and covering such other
matters relating to the transactions contemplated hereby as you may
reasonably request.
| 4.2. |
[Intentionally Omitted] |
14
| 4.3. |
Officer’s Certificates. |
(a) Hawkeye
Certificate . The representations and warranties of Hawkeye
contained in the Omnibus Assignment and Assumption Agreement are
true in all material respects as of the date of the Closing; no
Potential Default or Event of Default under the Hawkeye Note
Purchase Agreements shall exist on the part of Hawkeye and Hawkeye
shall have performed and complied in all material respects with all
agreements and conditions contained in the Omnibus Assignment and
Assumption Agreement which are required to be performed or complied
with by Hawkeye on or before the date of the Closing; and you shall
have received an Officer’s Certificate of the General Partner
of Hawkeye, dated the date of the Closing, to such
effects.
(b) Company
Certificate . The representations and warranties of the Company
contained in Section 3 hereof and in the Omnibus Assignment
and Assumption Agreement are true in all material respects as of
the date of the Closing; no Event of Default or Event of Project
Termination under the Agreement for Lease or Event of Default under
the Lease, as applicable, or Event of Default as defined in Exhibit
A to the Guaranty, shall exist on the part of the Company as of the
date of the Closing and the Company shall have performed and
complied in all material respects with all agreements and
conditions contained in this Agreement and in the Omnibus
Assignment and Assumption Agreement which are required to be
performed or complied with by the Company on or before the date of
the Closing; and you shall have received an Officer’s
Certificate of the Company, dated the date of the Closing, to such
effects.
(c) Lessee Certificate
. The representations and warranties of the Lessee contained in
Section 4.2 of the Omnibus Assignment and Assumption Agreement
are true in all material respects as of the date of the Closing; no
Event of Default or Event of Project Termination under the
Agreement for Lease or Event of Default under the Lease, as
applicable, or Event of Default as defined in Exhibit A to the
Guaranty, shall exist on the part of the Lessee as of the date of
the Closing and the Lessee shall have performed and complied in all
material respects with all agreements and conditions contained in
the Omnibus Assignment and Assumption Agreement which are required
to be performed or complied with by the Lessee on or before the
date of the Closing; and you shall have received an Officer’s
Certificate of the Lessee, dated the date of the Closing, to such
effects.
| 4.4. |
Execution and Delivery of Documents,
Filings. |
The following documents shall
have been duly executed and delivered by the parties thereto and
shall be in full force and effect, namely:
(a) the Omnibus Assignment
and Assumption Agreement, substantially in the form of Exhibit
C hereto (the “ Omnibus Assignment and Assumption
Agreement ”);
(b) the Quitclaim Deed,
substantially in the form of Exhibit D hereto (the “
Quitclaim Deed ”);
15
(c) the Bill of Sale,
substantially in the form of Exhibit E hereto (the “
Bill of Sale ”);
(d) the Release Deed (re the
Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing and the SNDA), substantially in the form of
Exhibit F hereto (the “ Release Deed
”);
(e) the Master Termination
Agreement, substantially in the form of Exhibit G hereto
(the “ Master Termination Agreement
”);
(f) the Termination of Notice
of Lease, substantially in the form of Exhibit H hereto (the
“ Termination of Notice of Lease ”);
and
(g) the Indemnity Letter,
substantially in the form of Exhibit I hereto (the “
Indemnity Letter ”).
All necessary releases and
termination statements with respect to existing UCC financing
statements shall have been done or provided for in order to release
or terminate the interests and rights created or intended to be
created thereby in respect of the Hawkeye Notes and the Project and
all taxes, fees and other charges payable in connection therewith
shall have been paid or provided for.
| 4.5. |
Payment of Counsel Fees. |
Without limiting the
provisions of Section 9.11 hereof, the Company shall have paid
on or before the date of the Closing the reasonable fees, charges
and disbursements of counsel to Hawkeye and your special counsel
referred to in Section 4.1 to the extent reflected in
statements of such counsel rendered to the Company on or prior to
the date of the Closing.
| 4.6. |
Proceedings Satisfactory. |
All proceedings taken in
connection with the issue of Notes and the consummation of the
transactions contemplated hereby, and the release of Hawkeye from
its obligations under the Hawkeye Note Purchase Agreements, the
Hawkeye Notes, the Collateral Indenture and the Mortgage, and all
documents and papers relating thereto shall be satisfactory to you
and your special counsel, and you and your special counsel shall
have received copies of such documents and papers as you or they
may reasonably request in connection therewith or as a basis for
your special counsel’s closing opinion, all in form and
substance satisfactory to you and your special counsel.
On the date of the Closing
the Notes shall (i) qualify as a legal investment under all
applicable laws to which you may be subject (without resort to any
basket provisions thereof), and you shall have received such
evidence as you may reasonably request to establish compliance with
this condition and (ii) not subject you to any penalty or
liability under or pursuant to any applicable law or
regulation.
16
| 4.8. |
Private Placement Numbers. |
A Private Placement Number
issued by Standard & Poor’s CUSIP Service Bureau (in
cooperation with the SVO) shall have been obtained for the
Notes.
| 4.9. |
Other Hawkeye Noteholders; Cancellation of Hawkeye
Notes. |
Each
|