Exhibit 10.1
EXECUTION VERSION
COVANTA HOLDING
CORPORATION
3.25% Cash Convertible Senior
Notes due 2014
Barclays Capital
Inc.
Citigroup Global Markets
Inc.
J.P. Morgan Securities
Inc.
As Representatives of the several
Initial Purchasers named in Schedule 1
attached hereto,
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Covanta
Holding Corporation, a Delaware corporation (the “
Company ”), proposes to issue and sell $400,000,000
aggregate principal amount of 3.25% Cash Convertible Senior Notes
due 2014 (the “ Firm Notes ”) to the initial
purchasers (the “ Initial Purchasers ”) named in
Schedule 1 attached to this agreement (this “
Agreement ”) for whom you are acting as
representatives (the “ Representatives ”). In
addition, the Company proposes to issue and sell to the Initial
Purchasers up to an additional $60,000,000 aggregate principal
amount of 3.25% Cash Convertible Senior Notes due 2014 on the terms
set forth in Section 2 (the “ Option Notes
”). The Firm Notes and the Option Notes, if purchased, are
hereinafter collectively called the “ Notes .”
The Notes will be issued pursuant to an indenture (the “
Indenture ”) to be entered into on the Initial
Delivery Date (as defined in Section 5) by the Company and
Wells Fargo Bank, National Association, as trustee (the “
Trustee ”). The Notes will be convertible into cash
based on the market price of the shares of common stock of the
Company, par value $0.10 per share (the “ Common Stock
”), in accordance with the terms of the Notes and the
Indenture. This is to confirm the agreement concerning the purchase
of the Notes from the Company by the Initial Purchasers.
1.
Purchase and Resale of the Notes . The Notes will be offered
and sold to the Initial Purchasers without registration under the
Securities Act of 1933, as amended (the “ Securities
Act ”), in reliance on an exemption pursuant to
Section 4(2) under the Securities Act. The Company has
prepared a preliminary offering memorandum, dated May 18, 2009
(the “ Preliminary Offering Memorandum ”), a
pricing term sheet substantially in the form attached hereto as
Schedule 2 (the “ Pricing Term Sheet
”) and an offering memorandum, dated May 18, 2009 (the
“ Offering Memorandum ”), setting forth
information regarding the Company and the Notes. The Preliminary
Offering Memorandum, as supplemented and amended as of the
Applicable Time (as defined below), together with the Pricing Term
Sheet and any of the documents listed on Schedule 3
hereto (other than any “road show”) are collectively
referred to as the “ Pricing Disclosure Package
.” The Company hereby confirms that it has authorized the use
of the Preliminary Offering Memorandum, the Pricing Disclosure
Package, the Offering Memorandum and any other documents listed on
Schedule 3 hereto in connection with the
offering and
resale of the Notes by the Initial Purchasers. “
Applicable Time ” means 4:30 p.m. (New York City time)
on the date of this Agreement.
Any
reference to the Preliminary Offering Memorandum, the Pricing
Disclosure Package or the Offering Memorandum shall be deemed to
refer to and include the Company’s most recent Annual Report
on Form 10-K and all subsequent documents filed with the Securities
and Exchange Commission (the “ Commission ”)
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), on
or prior to the date of the Preliminary Offering Memorandum, the
Pricing Disclosure Package or the Offering Memorandum, as the case
may be. Any reference to the Preliminary Offering Memorandum,
Pricing Disclosure Package or the Offering Memorandum, as the case
may be, as amended or supplemented, as of any specified date, shall
be deemed to include any documents filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
date of the Preliminary Offering Memorandum, Pricing Disclosure
Package or the Offering Memorandum, as the case may be, and prior
to such specified date. All documents filed under the Exchange Act
and so deemed to be included in the Preliminary Offering
Memorandum, Pricing Disclosure Package or the Offering Memorandum,
as the case may be, or any amendment or supplement thereto are
hereinafter called the “ Exchange Act Reports .”
The Exchange Act Reports, when they were or are filed with the
Commission, conformed or will conform in all material respects to
the applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder.
It
is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Notes shall bear
the following legend (along with such other legends as the Initial
Purchasers and their counsel deem necessary):
THE SALE OF
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND
ACCORDINGLY, UNTIL SUCH TIME AS COVANTA HOLDING CORPORATION (THE
“COMPANY”) HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND
NO LONGER APPLIES, THIS NOTE MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF
(X) ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF NOTES
(INCLUDING THROUGH THE EXERCISE OF THE OVER-ALLOTMENT OPTION
PURSUANT TO THE PURCHASE AGREEMENT DATED AS OF MAY 18, 2009, AMONG
THE COMPANY AND THE INITIAL PURCHASERS SPECIFIED THEREIN) AND
(Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY,
OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTES EVIDENCED
HEREBY EXCEPT (A) TO THE COMPANY; (B) UNDER A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL
BUYER AND TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR
(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL,
PRIOR TO ANY TRANSFER OF THIS NOTE WITHIN THE LATER OF (X) SIX
MONTHS (OR, IF THE COMPANY HAS NOT SATISFIED THE CURRENT PUBLIC
INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER THE LAST DATE
OF ORIGINAL ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE OF
THE OVER-ALLOTMENT OPTION) AND (Y) 90 DAYS AFTER IT CEASES TO
BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE
SECURITIES ACT) OF THE COMPANY, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THEY MAY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. IN
ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS NOTE OTHER
THAN IN CONFORMITY WITH RULE 144 BEFORE ONE YEAR AFTER THE LAST
DATE OF ORIGINAL ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE
OF THE OVER-ALLOTMENT OPTION).
You
have advised the Company that you will make offers (the “
Exempt Resales ”) of the Notes purchased by you
hereunder on the terms set forth in each of the Pricing Disclosure
Package and the Offering Memorandum, as amended or supplemented,
solely to persons (the “ Eligible Purchasers ”)
whom you reasonably believe to be “qualified institutional
buyers” as defined in Rule 144A under the Securities Act
(“ QIBs ”).
2.
Representations, Warranties and Agreements of the Company .
The Company represents, warrants and agrees that:
(a) When the Notes
are issued and delivered pursuant to this Agreement, the Notes will
not be of the same class (within the meaning of Rule 144A
under the Securities Act) as securities of the Company that are
listed on a United States national securities exchange registered
or that are quoted in a United States automated inter-dealer
quotation system.
(b) Assuming that
your representations and warranties in Section 4(a) are true, the
purchase and resale of the Notes pursuant hereto (including
pursuant to the Exempt Resales) is exempt from the registration
requirements of the Securities Act. No form of general solicitation
or general advertising within the meaning of Regulation D
(including, but not limited to, advertisements, articles, notices
or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising) was used by the Company or any
of its representatives (other than the Initial Purchasers, as to
whom the Company makes no representation) in connection with the
offer and resale of the Notes.
(c) Each of the
Preliminary Offering Memorandum, the Pricing Disclosure Package and
the Offering Memorandum, each as of its respective date, contains
all the information specified in, and meeting the requirements of,
Rule 144A(d)(4) under the Securities Act.
(d) The
Preliminary Offering Memorandum, the Pricing Disclosure Package and
the Offering Memorandum have been prepared by the Company for use
by the Initial Purchasers in connection with the Exempt Resales. No
order or decree preventing the use of the Preliminary Offering
Memorandum, the Pricing Disclosure Package or the Offering
Memorandum, or any order asserting that the transactions
contemplated by this Agreement are subject to the registration
requirements of the Securities Act, has been issued, and no
proceeding for that purpose has commenced or is pending or, to the
knowledge of the Company is contemplated.
(e) The Pricing
Disclosure Package did not, as of the Applicable Time, and will
not, as of the applicable Delivery Date, contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to
information contained in or omitted from the Pricing Disclosure
Package in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on
behalf of any Initial Purchaser specifically for inclusion therein,
which information is specified in Section 9(e).
(f) The Offering
Memorandum will not, as of its date and as of the applicable
Delivery Date, contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Offering Memorandum in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any Initial Purchaser specifically for inclusion
therein, which information is specified in
Section 9(e).
(g) The Company
has not made any offer to sell or solicitation of an offer to buy
the Notes that would constitute a “free writing
prospectus” (if the offering of the Notes was made pursuant
to a registered offering under the Securities Act), as defined in
Rule 405 under the Securities Act (a “ Free Writing
Offering Document ”) without the prior consent of the
Representatives; any such Free Writing Offering Document the use of
which has been previously consented to by the Initial Purchasers is
set forth substantially in form and substance as attached hereto on
Schedule 3 . Each Free Writing Offering Document, when
taken together with the Pricing Disclosure Package, did not, as of
the Applicable Time, and will not, as of the applicable Delivery
Date, contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained therein or omitted therefrom in
reliance upon and in conformity with written information furnished
to the Company through the Representatives by or on behalf of
any
Initial
Purchaser specifically for inclusion therein, which information is
specified in Section 9(e).
(h) The Exchange
Act Reports did not, when filed with the Commission, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the foregoing
representation and warranty is given on the basis that any
statement contained in an Exchange Act Report shall be deemed not
to be contained therein if the statement has been modified or
superseded by any statement in a subsequently filed Exchange Act
Report or in any amendment or supplement thereto.
(i) Each of the
Company and its subsidiaries (as defined in Section 18) has
been duly organized, is validly existing and in good standing as a
corporation or other business entity under the laws of its
jurisdiction of organization and is qualified to do business and in
good standing as a foreign corporation or other business entity in
each jurisdiction in which its ownership or lease of property or
the conduct of its businesses requires such qualification, except
where the failure to be so qualified or in good standing would not,
in the aggregate, reasonably be expected to have a material adverse
effect on the financial condition, results of operations,
stockholders’ equity, properties or business of the Company
and its subsidiaries taken as a whole (a “ Material
Adverse Effect ”); each of the Company and its
subsidiaries has all power and authority necessary to own or hold
its properties and to conduct the businesses in which it is
engaged. Schedule 4-A hereto sets forth a true and
correct list of all subsidiaries owned or controlled by the Company
that would be required to be disclosed under Item 601(b)(21)
of Regulation S-K. None of the subsidiaries of the Company
(other than the subsidiaries listed on Schedule 4-B
hereto (collectively, the “ Significant Subsidiaries
”)) is a “significant subsidiary” (as defined in
Rule 405).
(j) The Company
has an authorized capitalization as set forth in each of the
Pricing Disclosure Package and the Offering Memorandum, and all of
the issued and outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable, conform in all material respects to the description
thereof contained or incorporated by reference in each of the
Pricing Disclosure Package and the Offering Memorandum and were
issued in compliance with federal and, to the best knowledge of the
Company, state securities laws and not in violation of any
preemptive right, resale right, right of first refusal or similar
right. All of the Company’s options, warrants and other
rights to purchase or exchange any securities for shares of the
Company’s capital stock have been duly authorized and validly
issued, conform in all material respects to the description thereof
contained in each of the Pricing Disclosure Package and the
Offering Memorandum and were issued in compliance with federal and,
to the best knowledge of the Company, state securities laws. All of
the issued shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except for such liens, encumbrances, equities or claims
created pursuant to the Credit and Guaranty Agreement, dated as of
February 9, 2007, among the Company, Covanta Energy
Corporation,
certain of its subsidiaries, the lenders party thereto from time to
time and JPMorgan Chase Bank, N.A., as administrative agent, or as
would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(k) The Company
has all requisite corporate power and authority to execute, deliver
and perform its obligations under the Notes and the Indenture; the
Notes have been duly authorized and, when issued and delivered by
the Company and paid for by the Initial Purchasers pursuant to this
Agreement and duly authenticated by the Trustee, will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, and will be
enforceable against the Company in accordance with their terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors’ rights generally and by general equity principles
(whether considered in a proceeding in equity or at law); the
Indenture has been duly authorized by the Company and, when
executed and delivered by the Company, and assuming the due
authorization, execution and delivery of the Indenture by the
Trustee, will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except to the extent that such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors’ rights generally and by general equity principles
(whether considered in a proceeding in equity or at law); and the
Notes and the Indenture will conform in all material respects to
the descriptions thereof in each of the Pricing Disclosure Package
and the Offering Memorandum.
(l) The Company
has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement. This Agreement
has been duly and validly authorized, executed and delivered by the
Company.
(m) The execution,
delivery and performance of this Agreement by the Company, the
issuance of the Notes, the consummation of the other transactions
contemplated hereby and the application of the proceeds from the
sale of the Notes as described under “Use of Proceeds”
in each of the Pricing Disclosure Package and the Offering
Memorandum will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, impose any lien,
charge or encumbrance upon any property or assets of the Company
and its subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject, except as would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect or a
material adverse effect on the performance of this Agreement, the
issuance of the Notes or consummation of the other transactions
contemplated hereby, (ii) result in any violation of the
provisions of the charter or by-laws (or similar organizational
documents) of the Company or any of its subsidiaries; or
(iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets.
(n) No consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties or assets is required for the execution, delivery and
performance of this Agreement by the Company, the issuance of the
Notes, the consummation of the other transactions contemplated
hereby and the application of the proceeds from the sale of the
Notes as described under “Use of Proceeds” in each of
the Pricing Disclosure Package and the Offering Memorandum, except
for such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state or foreign
securities laws in connection with the purchase and sale of the
Notes by the Initial Purchasers.
(o) Except as
described in each of the most recent Pricing Disclosure Package and
the Offering Memorandum, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right (other than rights which have been waived in
writing or otherwise satisfied) to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such
person.
(p) Neither the
Company nor any other person acting on behalf of the Company has
sold or issued any securities that would be integrated with the
offering of the Notes contemplated by this Agreement pursuant to
the Securities Act, the rules and regulations promulgated by the
Commission or the interpretations thereof by the
Commission.
(q) Except as
described in each of the Pricing Disclosure Package and the
Offering Memorandum, (i) neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing Disclosure Package, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and (ii) since such
date, there has not been any change in the capital stock of the
Company or the long-term debt of the Company or any of its
subsidiaries or any adverse change, or any development involving a
prospective adverse change, in or affecting the financial
condition, results of operations, stockholders’ equity,
properties, management or business of the Company and its
subsidiaries taken as a whole, in each case except as would not, in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(r) Since the date
as of which information is given in the Pricing Disclosure Package
and except as described in each of the Pricing Disclosure Package
and the Offering Memorandum, the Company has not (i) incurred
any material liability or obligation, direct or contingent, other
than liabilities and obligations that were incurred in the ordinary
course of business, (ii) entered into any material transaction
not in the ordinary course of business or (iii) declared or
paid any dividend on its capital stock.
(s) The statements
set forth or incorporated by reference in each of the Pricing
Disclosure Package and the Offering Memorandum under the caption
“Description of the Notes,” insofar as they purport to
constitute a summary of the material terms of the
Notes, under
the caption “Description of Registrant’s Securities to
be Registered” in Form 8-A/A filed with the Commission on
November 17, 2006, insofar as they purport to constitute a
summary of the material terms of the Common Stock, under the
caption “Description of Concurrent Cash Convertible Note
Hedge Transactions and Warrant Transactions,” insofar as they
purport to constitute a summary of the material terms of the cash
convertible note hedge transactions and the warrant transactions,
under the caption “Certain United States Federal Income Tax
Considerations,” insofar as they purport to describe the
provisions of the documents and matters referred to therein, and
under the caption “Plan of Distribution,” insofar as
they purport to describe the provisions of the documents referred
to therein, fairly summarize in all material respects the matters
referred to therein.
(t) The historical
financial statements of the Company and its subsidiaries (including
the related notes and supporting schedules) included or
incorporated by reference in the Pricing Disclosure Package and the
Offering Memorandum present fairly in all material respects the
financial condition, results of operations and cash flows of the
entities purported to be shown thereby at the dates and for the
periods indicated and have been prepared in conformity with
accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods
involved.
(u) Ernst &
Young LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, whose report appears or
is incorporated by reference in each of the Pricing Disclosure
Package and the Offering Memorandum and who have delivered the
initial letter referred to in Section 8(h) hereof, are independent
public accountants as required by the Securities Act and the rules
and regulations of the Commission thereunder.
(v) The Company
and each of its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case, free and clear of
all liens, encumbrances and defects, except such as are described
in each of the Pricing Disclosure Package and the Offering
Memorandum or such as would not reasonably be expected to result in
a Material Adverse Effect; and all assets held under lease by the
Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as would
not reasonably be expected to result in a Material Adverse
Effect.
(w) The Company
and each of its subsidiaries carry, or are covered by, insurance
from insurers of recognized financial responsibility in such
amounts and covering such risks as the Company reasonably believes
(i) is commercially adequate for the conduct of their
respective businesses and the value of their respective properties
and (ii) is customary for companies engaged in similar
businesses in similar industries. All policies of insurance of the
Company and its subsidiaries are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of
such policies in all material respects; and neither the Company nor
any of its subsidiaries has received notice from any insurer or
agent of such insurer that material capital improvements or other
material expenditures are required or necessary to be made in order
to continue such insurance.
(x) The Company is
not, and as of the applicable Delivery Date (as defined in Section
5) and after giving effect to the offer and sale of the Notes and
the application of the proceeds therefrom as described under
“Use of Proceeds” in each of the Pricing Disclosure
Package and the Offering Memorandum will not be, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(y) Except as
described in each of the Pricing Disclosure Package and the
Offering Memorandum, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property or assets of the Company or any of its
subsidiaries is the subject that would, in the aggregate,
reasonably be expected to have a Material Adverse Effect or would,
in the aggregate, reasonably be expected to have a material adverse
effect on the performance of this Agreement, the issuance of the
Notes or consummation of the other transactions contemplated
hereby; and to the Company’s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
others.
(z) There are no
material legal or governmental proceedings or contracts or other
material documents of a character that would be required to be
described in a registration statement filed under the Securities
Act or, in the case of documents, to be filed as exhibits to such
registration statement pursuant to Item 601(10) of
Regulation S-K, that are not described in each of the Pricing
Disclosure Package and the Offering Memorandum.
(aa) No
relationship, direct or indirect, exists that would be required to
be described in a registration statement filed under the Securities
Act between or among the Company, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, that is not described in each of the
Pricing Disclosure Package and the Offering Memorandum.
(bb) No labor
disturbance by the employees of the Company or its subsidiaries
exists or, to the knowledge of the Company, is imminent that would
reasonably be expected to have a Material Adverse
Effect.
(cc) (i) Each
“employee benefit plan” (within the meaning of
Section 3(3) of the Employee Retirement Security Act of 1974,
as amended (“ ERISA ”)) for which the Company or
any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the “ Code ”))
would have any liability (each a “ Plan ”) has
been maintained in compliance with its terms and with the
requirements of all applicable statutes, rules and regulations
including ERISA and the Code; (ii) with respect to each Plan:
(a) no “reportable event” (within the meaning of
Section 4043(c) of ERISA, including, without limitation, any
failure to make a required minimum funding payment as described in
Pension Benefit Guaranty Corporation (“PBGC”)
Regulation Section 4043.25) has occurred or is reasonably
expected to occur; (b) no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any Plan excluding transactions
effected pursuant to a
statutory or
administrative exemption; (c) no Plan has failed (whether or
not waived), or is reasonably expected to fail, to satisfy the
minimum funding standards (within the meaning of Section 302
of ERISA or Section 412 of the Code) applicable to such Plan;
(d) no Plan is, or is reasonably expected to be, in
“at-risk status” (within the meaning of Section 303(i)
of ERISA) or “endangered status” or “critical
status” (within the meaning of Section 305 of ERISA); and
(e) neither the Company or any member of its Controlled Group
has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA (other than contributions to the Plan or premiums
to the PBGC in the ordinary course and without default) in respect
of a Plan (including a “multiemployer plan”, within the
meaning of Section 4001(c)(3) of ERISA); and (iii) each
Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or
by failure to act, which would cause the loss of such
qualification.
(dd) The Company
and each of its subsidiaries have filed all federal, state, local
and foreign income and franchise tax returns required to be filed
through the date hereof, subject to permitted extensions, and have
paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries, nor
does the Company have any knowledge of any tax deficiencies that
would, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(ee) Neither the
Company nor any of its subsidiaries (i) is in violation of its
charter or by-laws (or similar organizational documents),
(ii) is in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation of any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over it or its property or
assets or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business,
except in the case of clauses (ii) and (iii), to the extent
any such conflict, breach, violation or default would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(ff) The Company
and each of its subsidiaries (i) make and keep accurate books
and records and (ii) 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 authorization,
(B) transactions are recorded as necessary to permit
preparation of the Company’s financial statements in
conformity with accounting principles generally accepted in the
United States and to maintain accountability for its assets, (C)
access to the Company’s assets is permitted only in
accordance with management’s general or specific
authorization and (D) the recorded accountability for the
Company’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(gg) (i) The
Company and each of its subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in
Rule 13a-15
under the
Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be
disclosed by the Company and its subsidiaries in the reports they
will file or submit under the Exchange Act is accumulated and
communicated to management of the Company and its subsidiaries,
including their respective principal executive officers and
principal financial officers, as appropriate, to allow timely
decisions regarding required disclosure to be made and
(iii) such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were
established.
(hh) There is and
has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with the applicable provisions
of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith.
(ii) The Company
and each of its subsidiaries have such permits, licenses, patents,
franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities (“
Permits ”) as are necessary under applicable law to
own their properties and conduct their businesses in the manner
described in each of the Pricing Disclosure Package and the
Offering Memorandum, except for any of the foregoing that would
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect or except as described in each of the Pricing
Disclosure Package and the Offering Memorandum; each of the Company
and its subsidiaries has fulfilled and performed all of its
material obligations with respect to the Permits; none of the
Company or its subsidiaries is aware of any proceedings relating to
the revocation or material modification thereof, except for any of
the foregoing that would not reasonably be expected to have a
Material Adverse Effect or except as described in each of the
Pricing Disclosure Package and the Offering Memorandum.
(jj) The Company
and each of its subsidiaries own or possess adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, know-how, software, systems
and technology (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any
notice of any claim of conflict with, any such rights of others,
except for any failure to own or possess such adequate rights or
any such conflict that would not reasonably be expected to result
in a Material Adverse Effect.
(kk) The Company
and each of its subsidiaries (i) are, and at all times prior
hereto were, in compliance with all laws, regulations, ordinances,
rules, orders, judgments, decrees, permits or other legal
requirements of any governmental authority, including without
limitation any international, national, state, provincial,
regional, or local authority, relating to the protection of human
health or safety, the environment, or natural resources, or to
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”) applicable to such
entity, which compliance includes, without limitation, obtaining,
maintaining and complying with all permits and
authorizations
and approvals required by Environmental Laws to conduct their
respective businesses, and (ii) have not received notice of
any actual or alleged violation of Environmental Laws, or of any
potential liability for or other obligation concerning the
presence, disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except in the case of clause
(i) or (ii) where such non-compliance, violation,
liability, or other obligation would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as
described in each of the Pricing Disclosure Package and the
Offering Memorandum, (A) there are no proceedings that are
pending, or known to be contemplated, against the Company or any of
its subsidiaries under Environmental Laws in which a governmental
authority is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000
or more will be imposed, (B) the Company and its subsidiaries
are not aware of any issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws
or concerning hazardous or toxic substances or wastes, pollutants
or contaminants, that would reasonably be expected to have a
material effect on the capital expenditures, earnings or
competitive position of the Company and its subsidiaries and
(C) none of the Company and its subsidiaries anticipates
material capital expenditures relating to Environmental
Laws.
(ll) The Company
is in compliance in all respects with all presently applicable
state and local laws and regulations relating to the safety of its
operations, including the Operational Safety and Health Act of
1970, as amended, and the regulations thereunder, except where such
non-compliance would not reasonably be expected to have a Material
Adverse Effect.
(mm) For each of
the insurance Subsidiaries of the Company chartered as an insurance
company under state law other than Valor Insurance Company,
Incorporated (the “ Insurance Subsidiaries ”),
the Company has delivered true, correct and complete copies of the
statutory financial statements (including the annual reports filed
in each state in which one of such Insurance Subsidiaries is
admitted or approved) for each such Insurance Subsidiary for the
years 2006 through 2008. All such statements shall be referred to
as “ Insurance Subsidiary Statements ”; the
Insurance Subsidiary Statements present fairly in all material
respects, on a consistent basis and in accordance with practices
prescribed or permitted by the appropriate regulatory agencies of
each state in which the Insurance Subsidiary Statements have been
filed or may be required to be filed, the financial position at the
end of each such referenced period and results of each such
Insurance Subsidiary’s operations for each such referenced
period; the exhibits and schedules included in the Insurance
Subsidiary Statements are fairly stated in all material respects in
relation to the subject Insurance Subsidiary and the Insurance
Subsidiary Statements comply in all material respects with
applicable regulatory requirements.
(nn) Each of the
Insurance Subsidiaries is duly licensed as an insurance company
under the applicable insurance laws and the rules, regulations and
interpretations of the insurance regulatory authorities thereunder
of each jurisdiction in which the conduct of its existing business
as described in the Pricing Disclosure Package and the Offering
Memorandum requires such licensing, except for such jurisdictions
in
which the
failure to be so licensed would not, individually or in the
aggregate, be reasonably expected to result in a Material Adverse
Effect.
(oo) Each
subsidiary of the Company that owns, leases or operates an electric
generation facility located within the United States that makes
sales at wholesale (i) either (A) has been granted by the
Federal Energy Regulatory Commission (“ FERC ”)
“exempt wholesale generator” or “EWG”
(within the meaning of FERC regulations) status, (B) owns a
facility that is a “Qualifying Facility” (“
QF ”) as defined under the Public Utility Regulatory
Policies Act of 1978, as amended, and the current rules and
regulations promulgated thereunder (“ PURPA ”),
or (C) operates a facility owned by a state or municipality of
a state and is thus exempt from the Federal Power Act (“
FPA ”) under Section 201(f) of the FPA; and
(ii) other than Covanta Mid-Connecticut, Inc. (which operates
a facility that is owned by the Connecticut Resource Recovery
Authority, a public instrumentality and political subdivision of
the State of Connecticut established by statute), either
(A) has received an order from the FERC that is in full force
and effect and not subject to any pending challenge, investigation,
complaint, or other proceeding (other than generic proceedings
generally applicable in the industry) (x) authorizing such
subsidiary to engage in wholesale sales of energy, capacity and/or
ancillary services pursuant to Section 205 of the FPA and
(y) granting blanket authorizations to issue securities and to
assume liabilities pursuant to Section 204 of the FPA or
(B) with respect to any subsidiary that owns, leases or
operates a QF, such facility is a QF under PURPA and is exempt from
regulation under Section 204 of the FPA, and exempt from
Sections 205 and 206 of the FPA with respect to current sales
from the facilities.
(pp) Neither the
Company, nor any of its subsidiaries, is subject to
(i) regulation as a “public utility”,
“public service company” or “utility holding
company” (or any similar designation) by any state in the
United States, including regulation of rates for utility service,
securities issuances or other transactions, or (ii) regulation
by any local, state, federal or foreign governmental authority
requiring any notice, consent or approval for the issuance of the
Notes in the manner contemplated in this Agreement.
(qq) Other than
the Insurance Subsidiaries, no subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s property or assets to
the Company or any other subsidiary of the Company, except as
described in each of the Pricing Disclosure Package and the
Offering Memorandum.
(rr) Neither the
Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977; or
(iv) made
any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ss) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened, except, in each case, as would not reasonably
be expected to have a Material Adverse Effect.
(tt) Neither the
Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“ OFAC ”); and the
Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(uu) The Company
has not distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Notes, will
not distribute any offering material in connection with the
offering and sale of the Notes other than the Pricing Disclosure
Package, the Offering Memorandum and any Free Writing Offering
Document to which the Representatives have consented in accordance
with Section 6(f).
(vv) The Company
and its affiliates have not taken and will not take, directly or
indirectly, any action designed to or that has constituted or that
could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any securities of the
Company in connection with the offering of the Notes.
(ww) No
forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act)
contained in the Pricing Disclosure Package or the Offering
Memorandum has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Initial Purchasers in
connection with the offering of the Notes shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, but only as of the date thereof, to each Initial
Purchaser.
3.
Purchase of the Notes by the Initial Purchasers. On the
basis of the representations and warranties contained in, and
subject to the terms and conditions of, this
Agreement, the
Company agrees to issue and sell to the several Initial Purchasers,
and each of the Initial Purchasers, severally and not jointly,
agrees to purchase from the Company the principal amount of the
Firm Notes set forth opposite that Initial Purchaser’s name
in Schedule 1 hereto, plus any additional principal amount
of Notes which such Initial Purchaser may become obligated to
purchase pursuant to the provisions of Section 10
hereof.
In
addition, the Company grants to the Initial Purchasers an option to
purchase up to an additional $60,000,000 aggregate principal amount
of Option Notes, solely to cover over-allotments, if any. On the
basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, each
Initial Purchaser agrees, to the extent such option is exercised,
severally and not jointly, to purchase the principal amount of
Option Notes that bears the same proportion to the aggregate
principal amount of Option Notes to be sold on such Delivery Date
as the principal amount of Firm Notes set forth in Schedule 1
hereto opposite the name of such Initial Purchaser bears to the
aggregate principal amount of Firm Notes.
The
price of the Firm Notes purchased by the Initial Purchasers shall
be equal to 97.25% of the principal amount thereof. The price of
the Option Notes purchased by the Initial Purchasers shall be
97.25% of the principal amount thereof plus unpaid interest that
has accrued with respect to the Firm Notes from the Initial
Delivery Date to, but not including, the applicable Delivery
Date.
The
Company shall not be obligated to deliver any of the Firm Notes or
Option Notes to be delivered on the applicable Delivery Date,
except upon payment for all such Notes to be purchased on such
Delivery Date as provided herein.
4. Offering of
Notes by the Initial Purchasers . (a) Each of the Initial
Purchasers, severally and not jointly, hereby represents and
warrants to the Company that it will offer the Notes for sale upon
the terms and conditions set forth in this Agreement and in the
Pricing Disclosure Package. Each of the Initial Purchasers hereby
represents and warrants to, and agrees with, the Company, on the
basis of the representations, warranties and agreements of the
Company, that such Initial Purchaser: (i) 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) is purchasing the Notes pursuant
to a private sale exempt from registration under the Securities
Act; (iii) in connection with the Exempt Resales, will solicit
offers to buy the Notes only from, and will offer to sell the Notes
only to, the Eligible Purchasers in accordance with this Agreement
and on the terms contemplated by the Pricing Disclosure Package;
and (iv) will not offer or sell the Notes, nor has it offered
or sold the Notes by, or otherwise engaged in, any form of general
solicitation or general advertising (within the meaning of
Regulation D, including, but not limited to, advertisements,
articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television
or radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising). The
Initial Purchasers have advised the Company that they will offer
the Notes to Eligible Purchasers at a price initially equal to 100%
of the principal amount thereof, plus accrued interest, if any,
from the Initial Delivery Date. Such price may be changed by the
Initial Purchasers at any time without notice.
(b) Each Initial
Purchaser has not nor, prior to the later to occur of (A) the
Initial Delivery Date and (B) completion of the distribution
of the Notes, will not, use, authorize use of, refer to or
distribute any material in connection with the offering and sale of
the Notes other than (i) the Preliminary Offering Memorandum,
the Pricing Disclosure Package, the Offering Memorandum,
(ii) any written communication that contains no “issuer
information” (as defined in Rule 433(h)(2) under the
Securities Act) that was not included (including through
incorporation by reference) in the Preliminary Offering Memorandum
or any Free Writing Offering Document listed on
Schedule 3 hereto, (iii) the Free Writing Offering
Documents listed on Schedule 3 hereto, (iv) any
written communication prepared by such Initial Purchaser and
approved in advance by the Company in writing, or (v) any written
communication that contains the terms of the Notes and/or other
information that was included (including through incorporation by
reference) in the Preliminary Offering Memorandum, the Pricing
Disclosure Package or the Offering Memorandum.
Each
of the Initial Purchasers understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 8 hereof, counsel to the Company and
counsel to the Initial Purchasers, will rely upon the accuracy and
truth of the foregoing representations, warranties and agreements,
and the Initial Purchasers hereby consent to such
reliance.
5.
Delivery of and Payment for the Notes. Delivery of and
payment for the Firm Notes shall be made at 10:00 A.M., New
York City time, on the fourth full business day following the date
of this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the
“ Initial Delivery Date .” Delivery of the Firm
Notes shall be made to the Representatives for the account of each
Initial Purchaser against payment by the several Initial Purchasers
through the Representatives of the respective aggregate purchase
prices of the Firm Notes being sold by the Company to or upon the
order of the Company by wire transfer in immediately available
funds to the accounts specified by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each
Initial Purchaser hereunder. The Company shall deliver the Firm
Notes through the facilities of The Depository Trust Company
(“ DTC ”) unless the Representatives shall
otherwise instruct.
The
option granted in Section 2 may be exercised in whole or from
time to time in part by written notice being given to the Company
by the Representatives not later than 30 days after the date
of this Agreement. Such notice shall set forth the aggregate
principal amount of Option Notes as to which the option is being
exercised, the names in which the principal amount of Option Notes
are to be registered, the denominations in which the principal
amount of Option Notes are to be issued and the date and time, as
determined by the Representatives, when the principal amount of
Option Notes are to be delivered; provided, however , that
this date and time shall not be earlier than the Initial Delivery
Date nor earlier than the second business day after the date on
which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been
exercised. Each date and time the principal amount of Option Notes
are delivered is sometimes referred to as an “ Option
Notes Delivery Date ,” and
the Initial
Delivery Date and any Option Notes Delivery Date are sometimes each
referred to as a “ Delivery Date .”
Delivery
of the Option Notes by the Company and payment for the Option Notes
by the several Initial Purchasers through the Representatives shall
be made at 10:00 A.M., New York City time, on the date
specified in the corresponding notice described in the preceding
paragraph or at such other date or place as shall be determined by
agreement between the Representatives and the Company. On the
Option Notes Delivery Date, the Company shall deliver or cause to
be delivered the Option Notes to the Representatives for the
account of each Initial Purchaser against payment by the several
Initial Purchasers through the Representatives of the respective
aggregate purchase prices of the Option Notes being sold by the
Company to or upon the order of the Company of the purchase price
by wire transfer in immediately available funds to the accounts
specified by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Initial Purchaser
hereunder. The Company shall deliver the Option Notes through the
facilities of DTC unless the Representatives shall otherwise
instruct.
6.
Further Agreements of the Company . The Company
agrees:
(a) To promptly
furnish to the Initial Purchasers, without charge, such number of
copies of the Pricing Disclosure Package and the Offering
Memorandum, as may then be amended or supplemented, as they may
reasonably request;
(b) Not to make
any amendment or supplement to the Pricing Disclosure Package or to
the Offering Memorandum of which the Initial Purchasers shall not
previously have been advised or to which they shall reasonably
object after being so advised;
(c) To the use of
the Pricing Disclosure Package and the Offering Memorandum, in
accordance with state or foreign securities laws of the
jurisdictions in which the Securities are offered, by the Initial
Purchasers and by all dealers to whom Notes may be sold in
connection with the offering and sale of the Notes;
(d) To advise the
Initial Purchasers promptly, and confirm such advice in writing,
(i) of the occurrence of any event which makes any statement of a
material fact made in any of the Pricing Disclosure Package or the
Offering Memorandum, as then amended or supplemented, untrue or
which requires the making of any additions to or changes in any of
the Pricing Disclosure Package or the Offering Memorandum, as then
amended or supplemented, in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; (ii) of the issuance by any governmental or
regulatory authority of any order preventing or suspending the use
of any of the Pricing Disclosure Package or the Offering Memorandum
or the initiation or, to the best knowledge of the Company,
threatening of any proceeding for that purpose; and (iii) of
the receipt by the Company of any notice with respect to any
suspension of the qualification of the Notes for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its reasonable best efforts to prevent
the issuance of any such order preventing or suspending the use of
any of the
Pricing
Disclosure Package or the Offering Memorandum or suspending any
such qualification of the Securities and, if any such order is
issued, will obtain as soon as possible the withdrawal
thereof;
(e) If, at any
time prior to completion of the distribution of the Notes by the
Initial Purchasers to Eligible Purchasers, any event occurs or
information becomes known that, in the judgment of the Company or
in the opinion of counsel for the Initial Purchasers, should be set
forth in the Pricing Disclosure Package or the Offering Memorandum
so that the Pricing Disclosure Package or the Offering Memorandum,
as then amended or supplemented, does not include any untrue
statement of material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if
it is necessary to supplement or amend the Pricing Disclosure
Package or the Offering Memorandum in order to comply with any law,
to prepare, subject to Section 6(b), an appropriate supplement
or amendment thereto, and to expeditiously furnish to the Initial
Purchasers and dealers a reasonable number of copies
thereof;
(f) Not to make
any offer to sell or solicitation of an offer to buy the Notes that
would constitute a Free Writing Offering Document without the prior
consent of the Representatives, which consent shall not be
unreasonably withheld or delayed; if at any time following issuance
of a Free Writing Offering Document any event occurred or occurs as
a result of which such Free Writing Offering Document conflicts
with the information in the Preliminary Offering Memorandum, the
Pricing Disclosure Package or the Offering Memorandum or, when
taken together with the information in the Preliminary Offering
Memorandum, the Pricing Disclosure Package or the Offering
Memorandum, includes an 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 th
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