Exhibit 1.1
NEWPAGE
CORPORATION
11.375% Senior Secured Notes due
2014
Purchase Agreement (the
"Agreement")
September 17,
2009
Credit Suisse
Securities (USA) LLC
Goldman, Sachs
& Co.
Citigroup Global
Markets Inc.
As representatives of the
several Purchasers
named in Schedule I hereto (the
"Representatives")
Eleven Madison
Avenue
New York, New
York 10010
Ladies and
Gentlemen:
NewPage
Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and
sell to the Purchasers named in Schedule I hereto (each
individually, a "Purchaser" and collectively, the "Purchasers") an
aggregate of $1.7 billion principal amount of the Company's 11.375%
Senior Secured Notes due 2014 (the "Securities") yielding
approximately $1,598,000,000 of gross proceeds (after original
issue discount, but before fees and expenses). The Securities are
to be issued pursuant to an indenture (the "Indenture"), dated as
of September 30, 2009, among the Company, the Guarantors identified
on Schedule IV (each a "Guarantor," and collectively, the
"Guarantors") and The Bank of New York Mellon, as trustee (the
"Trustee"). The Securities will be unconditionally guaranteed as to
the payment of principal, premium and interest (including special
interest, if any) (the "Guarantees"), by the Guarantors.
The
Securities and Guarantees will be secured on a first-priority basis
by substantially all of the Company's and the Guarantors' present
and future property and assets, other than cash, deposit accounts,
accounts receivable, inventory, capital stock of the Company's
subsidiaries and intercompany debt and will be secured on a
second-priority basis by substantially all of the Company's and the
Guarantors' present and future cash, deposit accounts, accounts
receivables and inventory (the "Collateral"), granted to the
Collateral Trustee (as defined below) pursuant to (i) the
collateral trust agreement, dated as of May 2, 2005 (the
"Collateral Trust Agreement"), as amended by the First Amendment to
Collateral Trust Agreement, dated as of September 11, 2009, among
the Company, NewPage Holding Corporation, a Delaware corporation
(the "Parent"), the Guarantors, the Trustee, Goldman Sachs Credit
Partners L.P., as administrative agent under the Term Loan Credit
and Guaranty Agreement, dated as of December 21, 2007, as amended
by the First Amendment to Term Loan Credit and Guaranty Agreement,
dated as of September 11, 2009, among the Company, the Parent, the
Guarantors, and the various agents and lender parties named therein
(the "Term Loan Facility") and The Bank of New York Mellon
(formerly known as The Bank of New York), as collateral trustee
(the "Collateral Trustee"), (ii) the priority lien debt pledge and
security agreement, dated as of December 21, 2007 (the "Pledge and
Security Agreement"), to be amended by the First Amendment to
Pledge and Security Agreement, dated as of September 30, 2009 (the
"'First Amendment to the Pledge and Security Agreement"), entered
into among the Company, the Parent, the Guarantors and the
Collateral Trustee, (iii) the several patent and trademark security
agreements (the "IP Security Agreements"), entered into by the
Company or any Guarantor, as applicable, and the Collateral
Trustee, (iv) the Amended Mortgages (as defined herein) encumbering
certain properties owned in fee or leased by either of the Company
or any Guarantor (collectively, the "Mortgaged Properties"),
entered into by the Company or such Guarantor, as applicable, and
the Collateral Trustee, (v) one or more account control agreements
(collectively, the "Account Control Agreements"), entered into
between the Company or any Guarantor, as applicable, the Collateral
Trustee, the applicable depositary bank and JPMorgan Chase Bank, as
collateral agent (the "Collateral Agent") under the Revolving
Credit and Guaranty Agreement, dated as of December 21, 2007 (the
"Revolving Facility" and, together with the Term Loan Facility, the
"Credit Facilities"), as amended by the First Amendment to
Revolving Credit and Guaranty Agreement, dated as of September 11,
2009, among the Company, the Parent, the Guarantors, and the
various agents and lender parties named therein, (vi) the
intercreditor agreement, dated as of May 2, 2005 (the
"Intercreditor Agreement"), among the Company, the Parent, the
Guarantors, the Collateral Trustee and the Collateral Agent and
(vii) all other grants or easements or transfers for security
executed and delivered by either of the Company or any Guarantor
granting a lien on the Collateral to the Collateral Trustee
(together with the Collateral Trust Agreement, the Pledge and
Security Agreement, the First Amendment to Pledge and Security
Agreement, the IP Security Agreements, the Amended Mortgages, the
Account Control Agreements and the Intercreditor Agreement,
collectively, the "Collateral Documents"). The proceeds from the
issuance and sale of the Securities, together with borrowings under
the Revolving Facility, will be used to repay the Term Loan
Facility in its entirety, and to pay fees and expenses related to
the offering and sale of the Securities.
1.
The Company and each of the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each of the Purchasers
that:
(a)
A preliminary offering circular, dated September 16, 2009 (the
"Preliminary Offering Circular"), and an offering circular, dated
September 17, 2009 (the "Offering Circular"), have been prepared in
connection with the offering of the Securities. The Preliminary
Offering Circular, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(b)), is hereinafter
referred to as the "Pricing Circular." Any reference to the
Preliminary Offering Circular, the Pricing Circular or the Offering
Circular shall be deemed to refer to and include each of the
Company's and Parent's most recent Annual Report on Form 10-K and
all subsequent documents filed by the Company and Parent with the
United States Securities and Exchange Commission (the "Commission")
pursuant to Section 13(a), 13(c) or 15(d) of the United States
Securities Exchange Act of 1934, as amended (the "Exchange Act") on
or prior to the date of such circular, to the extent incorporated
by reference therein, and any reference to the Preliminary Offering
Circular or the Offering Circular, as the case may be, as amended
or supplemented, as of any specified date, shall be deemed to
include (i) any documents filed with the Commission by the Company
and Parent pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act after the date of the Preliminary Offering Circular or
the Offering Circular, as the case may be, and prior to such
specified date, to the extent incorporated by reference in such
circular, and (ii) any Additional Issuer Information (as defined in
Section 5(f)) and any Company Supplemental Disclosure Document (as
defined in Section 6(a)) furnished by the Company prior to the
completion of the distribution of the Securities; and all documents
filed under the Exchange Act and so deemed to be included in the
Preliminary Offering Circular, the Pricing Circular or the Offering
Circular, 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; and no such
documents were filed with the Commission since the Commission's
close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement,
except as set forth on Schedule II hereof. The Preliminary Offering
Circular and the Offering Circular and any amendments or
supplements thereto did not and will not, as of their respective
dates, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through the Representatives
expressly for use therein;
(b)
For the purposes of this Agreement, the "Applicable Time" is 1:30
pm (Eastern time) on the date of this Agreement; the Pricing
Circular, as supplemented by the information set forth in Schedule
III hereto, taken together (collectively, the "Pricing Disclosure
Package") as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
each Company Supplemental Disclosure Document (as defined in
Section 6(a)) listed on Schedule II(b) hereto does not conflict
with the information contained in the Pricing Circular or the
Offering Circular and each such Company Supplemental Disclosure
Document, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through the Representatives
expressly for use therein;
(c)
Neither the Company nor any of its Subsidiaries (as defined in the
Description of Notes contained in the Offering Circular) has
sustained since the date of the latest audited financial statements
included in the Pricing Circular any material 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, otherwise than as
set forth or contemplated in the Pricing Circular; and, since the
respective dates as of which information is given in the Pricing
Circular, there has not been any material change in the capital
stock or other equity interests or long term debt of the Company or
any of its Subsidiaries except as set forth or contemplated in the
Pricing Circular or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its
Subsidiaries, other than as set forth or contemplated in the
Pricing Circular;
(d)
The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement,
the Indenture (as defined herein), the Registration Rights
Agreement (as defined herein) and the Securities;
(e)
Each Guarantor has all requisite limited liability company or
corporate power, as the case may be, and authority to execute,
deliver and perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement and the
Guarantees;
(f)
At the Time of Delivery (as defined herein), each of the Company's
Subsidiaries that (i) is formed under the laws of the United States
or any state of the United States or the District of Columbia or
(ii) guarantees the Company's obligations under the Indenture, is
named as a Guarantor under this Agreement and is a guarantor of the
Securities except for Consolidated Water Power Company which shall
be designated an Unrestricted Subsidiary (as defined in the
Indenture);
(g)
Other than as disclosed in the Pricing Circular, the Company does
not own capital stock or other equity interests of any corporation
or entity other than the Guarantors, which would be required by the
Indenture to be a Guarantor thereunder;
(h)
The Company and 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 as are described in the
Pricing Circular, or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its Subsidiaries and
with such exceptions as would not have a Material Adverse Effect
(as defined below); and any real property and buildings held under
lease or license agreement by the Company and its Subsidiaries are
held by them under valid, subsisting and enforceable leases or
license agreements with such exceptions as would not individually
or in the aggregate have a material adverse effect on the business,
prospects, condition (financial or otherwise), earning or results
of operations of the Company and its Subsidiaries, taken as a whole
(a "Material Adverse Effect") and do not materially interfere with
the use made and proposed to be made of such property and buildings
by the Company and its Subsidiaries;
(i)
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with
corporate power and authority to own or lease its properties and
conduct its business as described in the Pricing Circular, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction, except where the failure to be
so qualified or in good standing in any such jurisdiction would not
individually or in the aggregate, result in a Material Adverse
Effect; and as of the date hereof, each Subsidiary of the Company
has been duly organized and is validly existing as an entity in
good standing under the laws of its jurisdiction of
organization;
(j)
Upon consummation of the issuance and sale of the Securities, the
Company will have an authorized capitalization as set forth in the
Pricing Circular, and all of the issued equity interests of the
Company will have been duly and validly authorized and issued and
are fully paid and non assessable; and all of the issued shares of
capital stock or other equity interest of each Subsidiary of the
Company have been duly and validly authorized and 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 those existing under the Credit
Facilities;
(k)
The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, 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; the Indenture has been duly authorized,
executed and delivered by the Company and the Guarantors, and the
Indenture will constitute, a valid and legally binding instrument
of the Company and each of the Guarantors, enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Securities and the
Indenture will conform to the descriptions thereof in the Pricing
Disclosure Package and the Offering Circular in all material
respects and will be in substantially the form previously delivered
to you;
(l)
This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors and, assuming due authorization,
execution and delivery by the Purchasers, constitutes the valid and
binding agreement of each of the Company and the Guarantors,
enforceable against each of the Company and the Guarantors in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditor's rights
and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(m)
At the Time of Delivery, the Guarantees will have been duly
authorized by each of the Guarantors, and when issued and delivered
by the Guarantors, will have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of such Guarantors, entitled to the benefits provided
by the Indenture, and enforceable against them in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(n)
The Exchange and Registration Rights Agreement to be dated as of
the Time of Delivery, among the Company, the Guarantors and the
Purchasers (the "Registration Rights Agreement"), has been duly
authorized by each of the Company and the Guarantors, and as of the
Time of Delivery, will have been duly executed and delivered by the
Company and the Guarantors and will constitute a valid and legally
binding obligation of the Company and the Guarantors, enforceable
against them in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); provided that no
representation is made with respect to Section 6 of the
Registration Rights Agreement relating to indemnification and
contribution;
(o)
The Exchange Securities (as defined herein) have been duly
authorized for issuance by the Company and, when executed,
authenticated, issued and delivered pursuant to this Agreement, the
Indenture and the Registration Rights Agreement, will constitute
valid and legally binding obligations of the Company, entitled to
the benefits provided by the Indentures and enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(p)
The guarantees of the Company's obligations under the Exchange
Securities (the "Exchange Guarantees") to be offered in exchange
for the Guarantees in the Exchange Offer have been duly authorized
by each of the Guarantors, and, when duly executed, issued and
delivered, will constitute valid and legally binding obligations of
such Guarantors, entitled to the benefits provided by the
Indentures under which they are to be issued, which will be
substantially in the form previously delivered to you as an exhibit
to the form of Indentures, and enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(q)
The Company and each of the Guarantors have all requisite limited
liability company or corporate power and authority, as the case may
be, to enter into any and all agreements and instruments ancillary
to or entered into in connection with the issuance and sale of the
Securities;
(r)
The First Amendment to Pledge and Security Agreement has been duly
and validly authorized by the Company and each of the Guarantors.
When the First Amendment to Pledge and Security Agreement has been
duly executed and delivered, the First Amendment to Pledge and
Security Agreement will constitute the valid and binding agreement
of the Company and the Guarantors, enforceable against the Company
and such Guarantors in accordance with their respective terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(s)
With respect to any Mortgaged Property subject to an Amended
Mortgage that is located in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide
hazards, the Company or the applicable Guarantor has delivered
evidence of flood insurance with respect to each such Mortgaged
Property with respect to which the improvements thereon are located
in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations
of the Board of Governors of the Federal Reserve System, in form
and substance reasonably satisfactory to the Purchasers;
(t)
Subject to the receipt by the applicable Guarantor of all required
approvals, consents or agreements from or by any governmental
authority having jurisdiction over certain Mortgaged Property
located in Nova Scotia, Canada or certain leased Mortgaged Property
located in Wickliffe, KY, and the Mortgage Modifications related
thereto, each of the mortgages or deeds of trust encumbering the
Mortgaged Properties (the "New Mortgages"), or the modifications of
mortgage or modifications of deed of trust of the existing
mortgages or deeds of trust, as applicable, encumbering the
Mortgaged Properties (the "Mortgage Modifications"; the New
Mortgages and the Mortgage Modifications are referred to
collectively herein as the "Amended Mortgages"), has been duly
authorized by each of the Guarantors party thereto, and the Amended
Mortgages, when executed and delivered by each such Guarantor, will
constitute valid and legally binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with their
respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law;
(u)
Subject to the receipt by the applicable Guarantor of all required
approvals, consents or agreements from or by any governmental
authority having jurisdiction over certain Mortgaged Property
located in Nova Scotia, Canada or certain leased Mortgaged Property
located in Wickliffe, KY, and the Amended Mortgages related
thereto, each Amended Mortgage has been or will be duly
acknowledged and recorded, and the security interest of the
Collateral Trustee in the real property and fixtures described in
the Amended Mortgage has created or will create a first priority
lien, duly perfected on the property which it purports to encumber.
The security interest of the Collateral Trustee in the real
property and fixtures described in the Amended Mortgages, is duly
perfected on the property which it purports to encumber. Each of
the Guarantors is a "registered organization" (as defined in
Article 9 of the Uniform Commercial Code (the "UCC") as in effect
in the state of New York and the states in which the Company and
each of the Guarantors is organized) under the law of the state in
which it is identified in the Indenture, as being organized. All
security interests granted by the Company and the Guarantors under
the Pledge and Security Agreement in collateral (the "Existing
Collateral") consisting of personal property or fixtures have been
duly perfected to the extent such security interests may be
perfected by filing pursuant to the filing of the financing
statement in connection with the execution of the Pledge and
Security Agreement or the Amended Mortgage, as applicable. At the
Time of Delivery, all security interests that will be granted by
the Guarantors under the Pledge and Security Agreement in
collateral consisting of personal property or fixtures shall be
duly perfected to the extent such security interests may be
perfected by filing pursuant to the filing of the financing
statement in connection with the execution of the Pledge and
Security Agreement. All certificated securities, promissory notes
and other instruments then evidencing or representing any
collateral shall be or shall have been, delivered to the Collateral
Trustee in pledge for the benefit of the holders of Obligations
under the Term Loan Facility and any other holder of Priority Lien
Obligations (as defined in the Collateral Trust Agreement) as
security, duly endorsed in blank by an effective
endorsement;
(v)
As of the Time of Delivery, the Company and each of the Guarantors
own or otherwise have the rights it purports to have in the
collateral securing the Securities free and clear of all Liens
(other than Permitted Liens (as defined in the Indenture)), and no
financing statements in respect of collateral securing the
Securities will as of the Time of Delivery be on file in favor of
any person other than those in respect of Permitted
Liens;
(w)
None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of
the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations T, U, and X of the Board
of Governors of the Federal Reserve System;
(x)
Prior to the date hereof, none of the Company, the Guarantors or
any of their affiliates has taken any action which is designed to
or which has constituted or which might have been expected to cause
or result in stabilization or manipulation of the price of any
security of the Company or any Guarantor in connection with the
offering of the Securities and the Guarantees;
(y)
The issue and sale of the Securities and the Guarantees, compliance
by the Company and the Guarantors with all of the provisions of the
Securities, the Guarantees, the Indenture, the Registration Rights
Agreement, the Collateral Trust Agreement, this Agreement
(collectively, the "Operative Documents"), the Collateral Documents
and the Credit Facilities, and the consummation of the transactions
herein and therein contemplated will not (i) conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject (except such as will not individually or in the aggregate
have a Material Adverse Effect), (ii) nor will such action result
in any violation of the provisions of the charter, by-laws,
operating agreement or other organizational documents of the
Company or any of its Subsidiaries, (iii) result in the imposition
of a lien, other than liens permitted under the Credit Facilities,
on any assets of the Company or any of the Guarantors or result in
the acceleration of any indebtedness of the Company or any of the
Guarantors; or (iv) result in any violation of the provisions of
any law or statute or any order, rule or regulation, judgment or
decree of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of
their respective properties or assets; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities and the Guarantees, the grant,
perfection or enforcement of security interests in the collateral
pursuant to the provisions of the Credit Facilities, the Collateral
Documents or the Amended Mortgages or the consummation by the
Company and the Guarantors of the transactions contemplated by the
Operative Documents, except for (A) the filing of a registration
statement by the Company with the United States Securities and
Exchange Commission pursuant to the United States Securities Act of
1933, as amended (the "Act") pursuant to the Registration Rights
Agreement, (B) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Purchasers, (C) the filings
required to perfect the Collateral Trustee's security interests
granted pursuant to the Collateral Documents and the Amended
Mortgages or (D) any consents, approvals, authorizations, orders,
registrations, qualifications or other actions that have been, or
prior to the Time of Delivery hereunder will be, obtained, waived
or made;
(z)
Neither the Company nor any of its Subsidiaries is (i) in violation
of its charter, by-laws, operating agreement or other
organizational documents or (ii) in default in the performance or
observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, except for any defaults
under clause (ii) above that would not, individually or in the
aggregate, have a Material Adverse Effect;
(aa)
The statements set forth in the Pricing Circular and the Offering
Circular under the caption "Description of Notes," insofar as they
purport to constitute a summary of the terms of the Securities, the
Guarantees, the Indenture, and the Collateral Trust Agreement, and
under the captions "Description of Certain Indebtedness" and
"Certain U.S. Federal Income and Estate Tax Considerations,"
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in
all material respects;
(bb)
Except as set forth in the Pricing Circular, there are no legal or
governmental proceedings pending to which the Company (including
each of its Subsidiaries) is a party or of which any property or
assets of the Company is the subject which, if determined adversely
to the Company, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(cc)
When the Securities and the Guarantees are issued and delivered
pursuant to this Agreement, neither the Securities nor the
Guarantees will be of the same class (within the meaning of Rule
144A under the Act) as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation
system;
(dd)
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Pricing Circular under the caption "Use of
Proceeds", will not be an "investment company", as such term is
defined in the United States Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (the "Investment
Company Act");
(ee)
Assuming the accuracy of the representations, warranties and
agreements of the Purchasers contained in this Agreement, neither
the Company nor any of its Subsidiaries, nor any person acting on
its or their behalf (other than the Purchasers and their affiliates
as to whom the Company and the Guarantors make no representation)
has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to Securities sold outside
the United States to non-U.S. persons (as defined in Rule 902 under
the Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Act and the Company, its
Subsidiaries, any affiliate of the Company or its Subsidiaries and
any person acting on its or their behalf (other than the Purchasers
and their affiliates as to whom Company and the Guarantors make no
representation) has complied with and will implement the "offering
restriction" within the meaning of such Rule 902;
(ff)
Assuming the accuracy of the representations, warranties and
agreements of the Purchasers contained in this Agreement, within
the preceding six months, neither the Company nor any other person
acting on its behalf (other than the Purchasers and their
affiliates as to whom the Company and the Guarantors make no
representation) has offered or sold to any person any Securities,
or any securities of the same or a similar class as the Securities,
other than Securities offered or sold to the Purchasers hereunder.
The Company will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or
to any U.S. person (as defined in Rule 902 under the Act) of any
Securities or any substantially similar security issued by the
Company, within six months subsequent to the date on which the
distribution of the Securities and the Guarantees has been
completed (as notified to the Company by the Representatives), is
made under restrictions and other circumstances reasonably designed
not to affect the status of the offer and sale of the Securities in
the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions
of the Act;
(gg)
PricewaterhouseCoopers LLP, who has certified certain financial
statements of the Company and its Subsidiaries, are independent
registered public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(hh)
The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company's principal executive
officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. Except as disclosed in the Offering
Circular, the Company's internal control over financial reporting
is effective and the Company is not aware of any material
weaknesses in its internal control over financial
reporting;
(ii)
Except as disclosed in the Offering Circular, since the date of the
latest audited financial statements included in the Pricing
Circular, there has been no change in the Company's internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company's internal
control over financial reporting;
(jj)
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) of the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company and its Subsidiaries, is made
known to the Company's principal executive officer and principal
financial officer by others within those entities; and such
disclosure controls and procedures are effective;
(kk)
The market-related and industry data included in the Pricing
Circular and the Offering Circular are based on third party data
and upon estimates by the Company derived from sources which the
Company believes to be reliable and accurate in all material
respects;
(ll)
The historical consolidated financial statements (including the
notes thereto) included in the Pricing Circular and the Offering
Circular present fairly in all material respects the financial
position, results of operations, cash flows and changes in combined
equity of the entities to which they relate at the respective dates
and for the respective periods indicated. All such financial
statements have been prepared in accordance with generally accepted
accounting principles in the United States applied on a consistent
basis throughout the periods presented (except as disclosed
therein) and in compliance with Regu
