Exhibit 10.11
$750,000,000
DYNEGY HOLDINGS
INC.
8.375% Senior Notes due
2016
PURCHASE
AGREEMENT
March 29, 2006
Credit Suisse Securities (USA)
LLC
Citigroup Global Markets
Inc.,
Banc of America Securities
LLC
J.P. Morgan Securities
Inc.,
c/o Credit
Suisse Securities (USA) LLC,
Eleven
Madison Avenue,
New
York, N.Y. 10010-3629
Dear Sirs:
1. Introductory . Dynegy
Holdings Inc., a Delaware corporation (the “
Company ”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial
purchasers named in Schedule A hereto (the “
Purchasers ”) U.S.$750,000,000 principal amount of its
8.375% Senior Notes due 2016 (“ Offered Securities
”) to be issued under a second supplemental indenture to be
dated as of April 12, 2006 to the indenture dated
September 26, 1996, as restated as of March 23, 1998,
amended and restated as of March 14, 2001 and supplemented by
a first supplemental indenture dated as of July 25, 2003
(collectively, the “ Indenture ”), between the
Company and Wilmington Trust Company (as successor to
JP Morgan Chase Bank, N.A.), as Trustee, on a private
placement basis pursuant to an exemption under Section 4(2) of
the United States Securities Act of 1933 (the “ Securities
Act ”), and hereby agrees with the several Purchasers as
follows.
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement of even date herewith among the Company and the
Purchasers (the “ Registration Rights Agreement
”), pursuant to which the Company has agreed to file a
registration statement with the Securities Exchange Commission (the
“ Commission ”) to exchange the Offered
Securities for a new class of securities issued under the Indenture
and registered under the Securities Act subject to the terms and
conditions therein specified.
As used herein, the term “
Operative Documents ” refers to this Agreement, the
Registration Rights Agreement, the Indenture and the Offered
Securities.
2. Representations and Warranties
of the Company . The Company represents and warrants to, and
agrees with, the several Purchasers that:
(a) A preliminary offering circular
dated as of March 29, 2006 (the “ Preliminary
Offering Circular ”) relating to the Offered Securities
to be offered by the Purchasers and a final offering circular (the
“ Final Offering Circular ”) disclosing the
offering price and other final terms of the Offered Securities
dated as of the date of this Agreement (even if finalized and
issued subsequent to the date of this Agreement) have been or will
be prepared by the Company. “ General Disclosure
Package ” means the Preliminary Offering Circular,
together with any Issuer Free Writing Communication (as hereinafter
defined) existing at the Applicable Time (as hereinafter defined)
as evidenced by its being specified in Schedule B to this Agreement
(including the term sheet listing the final terms of the Offered
Securities and their offering, included in Schedule B to this
Agreement, which is referred to as the “ Terms
Communication ”). Any reference herein to the Preliminary
Offering Circular, the Offering Circular or the General Disclosure
Package shall be deemed to refer to and include the filing of any
Exchange Act Report (as defined). “ Applicable Time
” means 3:15 P.M. (EST time) on the date of this Agreement.
As of the date of this Agreement and as of the Closing Date, the
Final Offering Circular does 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. At the Applicable Time and as of the Closing
Date neither (i) the General Disclosure Package, nor
(ii) any individual Supplemental Marketing Material (as
hereinafter defined), when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted 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. The preceding two
sentences do not apply to statements in or omissions from the
Preliminary or Final Offering Circular, the General Disclosure
Package or any Supplemental Marketing Material based upon written
information furnished to the Company by any Purchaser through
Credit Suisse Securities (USA) LLC (“ Credit Suisse
”) specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 8(b) hereof. On the date of this Agreement, the
Company’s annual report on Form 10-K most recently filed
with the Commission and all subsequent reports (collectively, the
“ Exchange Act Reports ”) which have been or
subsequently are deemed to be incorporated by reference in the
Preliminary Offering Circular, the General Disclosure Package or
the Final Offering Circular do not include any untrue statement of
a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such documents, when
they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
“ Free Writing
Communication ” means a written communication (as such
term is defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or a solicitation of an offer to buy
the Offered Securities and is made by means other than the
Preliminary Offering Circular or the Final Offering Circular.
“ Issuer Free Writing Communication ” means a
Free Writing Communication prepared by or on behalf of the Company,
used or referred to by the Company or containing a description of
the final terms of the Offered Securities or of their offering, in
the form retained in the Company’s records. “
Supplemental Marketing Material ” means any Issuer
Free Writing Communication other than any Issuer Free Writing
Communication specified in Schedule B to this Agreement.
(b) No order or decree preventing
the use of the General Disclosure Package, the Final Offering
Circular 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.
(c) Each of the Company and its
subsidiaries has been duly incorporated or formed and is an
existing corporation, limited liability company, limited
partnership or general partnership in good standing under the laws
of its state of organization, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the General Disclosure Package; and each of the
Company and its subsidiaries is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except to the extent the
failure to so qualify or be in good standing could not reasonably
be expected to have a material adverse effect on the condition
(financial or other), business, properties, results of operations
or, to the knowledge of the Company, prospects of the Company and
its subsidiaries, taken as a whole (a “ Material Adverse
Effect ”). The Company has all requisite corporate power
and authority to enter into the Operative Documents and has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(d) Neither the Company nor any of
its subsidiaries is (i) in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which the Company or its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective
property is bound, or (ii) in violation of its respective
charter or by-laws, operating agreement or other organizational
document that governs the existence or administration of such
entity, in each case, except as could not reasonably be expected to
have a Material Adverse Effect.
(e)(i) As of the date hereof,
subject to changes in the ordinary course of business or as
contemplated by the General Disclosure Package, the Company has the
capitalization set forth in the General Disclosure Package, under
the heading “Capitalization,” (ii) all of the
issued shares of capital stock of the Company and its subsidiaries
have been duly and validly authorized and issued
and are fully paid and
non-assessable and (iii) the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned
free from liens, encumbrances and material defects, other than
those arising under the Company’s third amended and restated
credit agreement, dated March 6, 2006 (the “Credit
Facility”), with Citicorp USA, Inc. and JPMorgan Chase Bank,
N.A., as co-administrative agents, JPMorgan Chase Bank, N.A., as
collateral agent, Citigroup Global Markets Inc. and JPMorgan
Securities Inc., as joint lead arrangers, and the other financial
institutions parties thereto as lenders.
(f) The Offered Securities have been
duly and validly authorized by the Company and, when duly executed
by the Company in accordance with the terms of the Indenture,
assuming due authentication of the Offered Securities by the
Trustee, upon delivery to the Purchasers against payment therefor
in accordance with the terms hereof, will be validly issued and
delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors’ rights
generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefore may
be brought (regardless of whether such enforcement is considered in
a proceeding in equity or at law). On the date of this Agreement
the Offered Securities conform to the description thereof contained
in the General Disclosure Package and on the Closing Date the
Offered Securities will conform to the description thereof
contained in the Final Offering Circular.
(g) The Exchange Securities (as
defined in the Registration Rights Agreement) have been, or as of
the Registered Exchange Offer (as defined in the Registration
Rights Agreement) will have been, duly and validly authorized by
the Company and, when duly executed by the Company in accordance
with the terms of the Indenture, assuming due authentication of the
Exchange Securities by the Trustee, upon exchange for the Initial
Securities (as defined in the Registration Rights Agreement), will
be validly issued and delivered, and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture, enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors’ rights generally and
(ii) general principles of equity and the discretion of the
court before which any proceeding therefore may be brought
(regardless of whether such enforcement is considered in a
proceeding in equity or at law). The Exchange Securities will
conform to the descriptions thereof contained in the Registration
Statement (as defined in the Registration Rights
Agreement).
(h) The Indenture has been, or as of
the Closing Date will have been, duly and validly authorized by the
Company, and upon its execution and delivery and, assuming due
authorization, execution and delivery by the Trustee, will
constitute the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by
(i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors’ rights generally and
(ii) general principles of equity and the discretion of the
court before which any proceeding therefore may be brought
(regardless of whether such enforcement is considered in a
proceeding in equity or at law); and assuming the accuracy of the
Purchasers’ representations and warranties and the
Purchasers’ compliance with the agreements in Section 4
hereof and compliance with the limitations and restrictions
contained under the heading “Transfer Restrictions” in
the Final Offering Circular, no qualification of the Indenture
under the Trust Indenture Act of 1939, as amended (the “
TIA ”) is required in connection with the offer and
sale of the Offered Securities contemplated hereby; and the
Indenture conforms in all material respects to the requirements of
the TIA, and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder. On the date of this
Agreement the Indenture conforms to the description thereof in the
General Disclosure Package, and on the Closing Date the Indenture
will conform to the description thereof in the Final Offering
Circular.
(i) This Agreement and the
Registration Rights Agreement have been duly authorized, executed
and delivered by the Company.
(j) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person that would give
rise to a valid claim against the Company or any Purchaser for a
brokerage commission, finder’s fee or other like
payment.
(k) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required for the consummation of the
transactions contemplated by the Operative Documents in connection
with the issuance and sale of the Offered Securities by the
Company, except for (i) the order of the Commission declaring
the Exchange Offer Registration or the Shelf Registration Statement
(each as defined in the Registration Rights Agreement) effective,
(ii) such as may be required under foreign or state securities
laws, blue sky laws and related regulations, (iii) those that
have been obtained or made on or prior to the Closing Date and
(iv) those that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and would
not materially adversely affect the ability of the Company to
perform its obligations under the Operative Documents.
(l) The execution, delivery and
performance of the Operative Documents, and the issuance and sale
of the Offered Securities and compliance with the terms and
provisions thereof, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under
(i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or
any of their properties, (ii) any 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 properties of the Company or any of its subsidiaries is
subject, or (iii) the charter or by-laws of the Company or any
of its subsidiaries, except in the case of (i) and (ii), for
such breaches, violations or defaults as could not reasonably be
expected to have a Material Adverse Effect.
(m) Except as disclosed in the
General Disclosure Package, the Company and its subsidiaries
possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct
the business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely
to the Company or its subsidiaries, could individually or in the
aggregate reasonably be expected to have a Material Adverse
Effect.
(n) Except as disclosed in the
General Disclosure Package, each of the Company and its
subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed
by all governmental agencies, bodies or courts, except where the
failure to comply could not reasonably be expected to have a
Material Adverse Effect.
(o) To the knowledge of the Company,
no labor dispute with the employees of the Company and its
subsidiaries, that could reasonably be expected to result in a
Material Adverse Effect is imminent.
(p) The Company and its subsidiaries
own or possess on reasonable terms, adequate trademarks, trade
names and other rights to patents, copyrights and other
intellectual property (collectively, “ intellectual
property rights ”) necessary to conduct the business now
operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect.
(q) Except as disclosed in the
General Disclosure Package, neither the Company nor any of its
subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court,
domestic or foreign having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties, relating to
the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively,
“ environmental laws ”), owns or operates any
real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect;
and the Company is not aware of any pending investigation which
might lead to such a claim.
(r) Except as disclosed in the
General Disclosure Package, there are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or their respective properties that, if determined
adversely to the Company or its subsidiaries, could reasonably be
expected to, individually or in the aggregate, have a Material
Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the
Operative Documents; and except as disclosed in the General
Disclosure Package no such actions, suits or proceedings are, to
the Company’s knowledge, threatened or
contemplated.
(s) The financial statements of the
Company included or incorporated by reference in the General
Disclosure Package present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements of the Company
included or incorporated by reference in the General Disclosure
Package provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts. The Company
has prepared restated consolidated balance sheets as of
December 31, 2004, 2003, 2002 and 2001, and a restated
consolidated statement of changes in stockholders’ equity for
each of the four years in the period ended December 31, 2004.
PricewaterhouseCoopers LLP has audited the Company’s restated
consolidated balance sheet as of December 31, 2004 and the
restated consolidated statement of changes in stockholders’
equity for each of the two years in the period ended
December 31, 2004 (collectively, the “ Audited
Restated Financial Statements ”). The Company’s
restated consolidated balance sheets and restated consolidated
statements of changes in stockholders’ equity for periods
prior to those included in the Audited Restated Financial
Statements (collectively, the “ Unaudited Restated
Financial Statements ”) were prepared by the Company on a
basis consistent with the Audited Restated Financial Statements,
and the selected financial data set forth under the captions
“Summary Historical and Unaudited Pro Forma Condensed
Consolidated Financial Data” and “Selected Financial
Data” and other financial information derived from the
Unaudited Restated Financial Statements that is included or
incorporated by reference in the General Disclosure Package fairly
present the information included therein.
(t) Except as disclosed in the
General Disclosure Package, since the date as of which the
information is given in the General Disclosure Package, there has
been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties, results of operations
or, to the knowledge of the Company, prospects of the Company and
its subsidiaries, taken as a whole and, except as disclosed in or
contemplated by the General Disclosure Package, there has been no
dividend or distribution of any kind declared, paid or made by
Company on any class of its capital stock.
(u) The Company is subject to the
reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system.
(v) The Company is not an open-end
investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940
(the “ Investment Company Act ”); and the
Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds thereof
as described in the General Disclosure Package, will not be an
“investment company” as defined in the Investment
Company Act.
(w) The Company has established and
maintains disclosure controls and procedures (as defined in Rule
13a-15(e) and 15d-15(e) under the Exchange Act), which (i) are
designed to ensure that material information relating to the
Company and its consolidated subsidiaries is made known to the
principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in
which the periodic reports required under the Exchange Act are
being prepared; (ii) have been evaluated for effectiveness as
of a date within 90 days prior to the date of the Company’s
Annual Report (as defined below); and (iii) except as
disclosed in the General Disclosure Package, are effective in all
material respects to perform the functions for which they were
established.
(x) Based on the most recent
evaluation of its disclosure controls and procedures, the Company
is not aware of (i) any significant deficiency in the design
or operation of internal controls which could adversely affect the
ability of the Company to record, process, summarize and report
financial data or any material weaknesses in internal controls,
other than the material weakness relating to tax accounting and
reconciliation controls and processes disclosed in the General
Disclosure Package; or (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in internal controls.
(y) Since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses, except as disclosed in the
General Disclosure Package.
(z) PricewaterhouseCoopers LLP who
have certified certain financial statements of the Company and its
subsidiaries are independent public accountants with respect to the
Company as required by the Securities Act and the rules and
regulations of the Commission thereunder.
(aa) Except as set forth in the
General Disclosure Package, neither the Company nor any of its
subsidiaries is (i) subject to regulation under the Federal
Power Act, as amended (“ FPA ”), other than as a
power marketer or an “exempt wholesale generator”
(“ EWG ”) with market-based rate authority, or
as a “qualifying facility” (“ QF ”)
under the Public Utility Regulatory Policies Act of 1978, as
amended (16 U.S.C. Section 796 et seq.) (“ PURPA
”), as contemplated by 18 C.F.R. Section 292.601(c), or
(ii) with respect to each of the power generation projects in
which any of the Company or its subsidiaries has an interest that
is a QF, subject to any state law or regulation with respect to
rates or the financial or organizational regulation of electric
utilities, other than as contemplated by 18 C.F.R.
Section 292.602(c).
(bb) Each of the Company’s
subsidiaries providing retail electric service in the states of
California and Texas is authorized under applicable statutes and
administrative rules to sell electricity on a retail basis, and
such authority is not subject to any pending challenge,
investigation, or proceeding. In Illinois, the Company’s
subsidiary is in compliance with all laws and administrative rules
with respect to providing retail electric service in that state and
is in the process of making a revised filing attesting to such
compliance based on changed circumstances None of the
Company’s subsidiaries providing retail electric service is
subject to any rate cap or mitigation measure other than rate caps
and mitigation measures generally applicable to similarly situated
retail service providers selling in the geographic market where
such subsidiary conducts its business.
(cc) Except as disclosed in the
General Disclosure Package, each of the power generation projects
certified as a QF under PURPA in which the Company or its
subsidiaries has an interest meets the requirements for
certification as a QF as set out in PURPA and the regulations of
the Federal Energy Regulatory Commission (“ FERC
”) promulgated thereunder, as amended from time to
time.
(dd) Each of the Company and its
subsidiaries that sells power at market-based rates outside of the
Electric Reliability Council of Texas, Inc. (“ ERCOT
”) has a validly-issued order from the FERC authorizing it to
engage in wholesale sales of electricity, ancillary services in
certain markets and, to the extent permitted under its market-based
rate tariff, other products and services at market-based rates. The
FERC has not issued any orders limiting the ability of each such
entity to engage in the wholesale sales of electricity at
market-based prices, and had not imposed any rate caps or
mitigation measures other than rate caps and mitigation measures
generally applicable to similarly situated marketers or generators
selling electricity, ancillary services or other products at
wholesale in the geographic market where each such entity conducts
its business.
(ee) Each of the Company’s
subsidiaries participating in the ERCOT wholesale electric market
has registered with the Public Utilities Commission of Texas
(“ PUCT ”) as a power
generation company, and has
authority to sell power at wholesale at a market-based rate that is
not subject to any rate cap or mitigation measure other than those
generally applicable to similarly situated marketers or generators
selling electricity in the ERCOT wholesale electric
market.
(ff) There are no pending complaints
filed with the FERC seeking abrogation or modification of a
contract for the sale of power by the Company or any of its
subsidiaries.
(gg) No securities of the same class
(within the meaning of Rule 144A(d)(3) under the Securities
Act) as the Offered Securities are listed on any national
securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation
system.
(hh) The offer and sale of the
Offered Securities by the Company to the several Purchasers in the
manner contemplated by this Agreement (assuming that the
representations and warranties in Section 4 of this Agreement
are true and correct and the Purchasers comply with the offer and
sale procedures set forth in this Agreement) will be exempt from
the registration requirements of the Securities Act by reason of
Section 4(2) thereof, and Regulation D and Regulation S
thereunder.
(ii) Neither the Company nor any of
its affiliates, nor any person acting on its or their behalf (it
being understood that no representation is made with respect to any
Purchaser or any Purchaser’s affiliates or any of their
representatives) (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any
U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same
class or series as the Offered Securities or (ii) has offered
or will offer or sell the Offered Securities (A) in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities
Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S under the Securities Act, by
means of any directed selling efforts within the meaning of Rule
902(c) of Regulation S. The Company, its respective affiliates and
any person acting on its or their behalf (it being understood that
no representation is made with respect to any Purchaser or any
Purchaser’s affiliates or any of their representatives) have
complied and will comply with the offering restrictions requirement
of Regulation S and the sale of the Offered Securities pursuant to
Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act. The Company has not
entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for
this Agreement.
(jj) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities
with the Offered Securities registered pursuant to any registration
statement.
(kk) Neither the Company nor any of
its subsidiaries nor any agent thereof acting on the behalf of them
has taken, and none of them will take, any action that might cause
this Agreement or the issuance or sale of the Offered Securities to
violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(ll) The Company and each of its
subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in
similar industries.
(mm) No “nationally recognized
statistical rating organization” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act (i) has
imposed (or has informed the Company that it is considering
imposing) any condition (financial or otherwise) on the
Company’s retaining any rating assigned to the Company or any
securities of the Company or (ii) has indicated to the Company
that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of
the Company or any securities of the Company.
(nn) Except for such matters as
could not reasonably be expected to have a Material Adverse Effect,
the Company is in compliance with all presently applicable
provisions of ERISA; no “reportable event” (as defined
in ERISA), has occurred with respect to any “pension
plan” (as defined in ERISA), for which the Company would have
any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”
or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published
interpretations thereunder (the “ Code ”); and
each “pension plan” for which the Company would have
any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such
qualification.
(oo) The Company has filed all
material federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
due thereon, and no tax deficiency except where the same may be
contested in good faith by appropriate proceedings, and no tax
deficiency has been determined adversely to the Company or any of
its subsidiaries which has had (nor does the Company has any
knowledge of any tax deficiency in writing which, if determined
adversely to the Company or any of its subsidiaries, could
reasonably be expected to have) a Material Adverse
Effect.
(pp) Prior to the date hereof,
neither the Company nor any of its 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 in connection with the
offering of the Offered Securities.
(qq) The General Disclosure Package
contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities
Act.
(rr) The statements set forth in the
Preliminary and the Final Offering Circular under the caption
“Description of Notes,” insofar as they purport to
constitute a summary of the terms of the Offered Securities, under
the captions “Material U.S. Federal Income Tax
Considerations,” “Description of Certain
Indebtedness” and “Plan of Distribution,” insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and fair summaries in
all material respects.
3. Purchase, Sale and Delivery of
Offered Securities . On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the
