Exhibit
10.29
ACAS BUSINESS LOAN TRUST
2005-1
ASSET-BACKED NOTES
SERIES 2005-1
$435,000,000 CLASS A-1
NOTES
$50,000,000 CLASS A-2B
NOTES
$50,000,000 CLASS B
NOTES
$145,000,000 CLASS C
NOTES
PURCHASE AGREEMENT
September 29, 2005
Wachovia Capital Markets, LLC
Citigroup Global Markets Inc.
Banc of America Securities LLC
BB&T Capital Markets,
a division of
Scott & Stringfellow, Inc.
Harris Nesbitt Corp.
HVB Capital Markets, Inc.
as the Initial Purchasers (the “
Initial Purchasers ”)
c/o Wachovia Capital Markets, LLC
as representative of the Initial Purchasers (the
“ Representative ”)
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
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Section 1.
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Authorization of Notes
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American Capital Strategies, Ltd.
(“ American Capital ” or the “
Company ”), ACAS Business Loan LLC, 2005-1 (the
“ Trust Depositor ”) and ACAS Business Loan
Trust 2005-1, a Delaware statutory trust (the “ Trust
”) have duly authorized the sale of the ACAS Business Loan
Trust Notes, Series 2005-1, consisting of the Class A-1
Floating Rate Asset Backed Notes (the “ Class A-1
Notes ”), the Class A-2A Delayed Draw Floating Rate
Asset Backed Notes (the “ Class A-2A Notes ”),
the Class A-2B Floating Rate Asset Backed Notes (the “
Class A-2B Notes ” and, together with the
Class A-1 Notes and the Class A-2A Notes, the “
Class A Notes ”), the Class B Floating Rate Deferrable
Asset Backed Notes (the “ Class B Notes ”), the
Class C Floating Rate Deferrable Asset Backed Notes (the “
Class C Notes ”, together with the Class A Notes
and the Class B Notes the “ Offered Notes ”),
the Class D Principal Only Asset Backed Notes (the “ Class
D Notes ”) and the Class E Principal Only Asset Backed
Note (the “ Class E Note ” and together with the
Offered Notes and the Class D Notes, the “ Notes
”) of the Trust. The Trust is governed by an Amended and
Restated Trust Agreement, dated as of October 4, 2005 (the
“ Trust Agreement ”), among the Trust Depositor,
Wachovia Bank of Delaware, National
Association, as owner trustee (the “
Owner Trustee ”) and the Company, as servicer. The
Class A-1 Notes will be issued in an aggregate initial
principal amount of $435,000,000, the Class A-2A Notes will be
issued in an aggregate initial principal amount of up to
$150,000,000, the Class A-2B Notes will be issued in aggregate
initial principal amount of $50,000,000, the Class B Notes will be
issued in an aggregate initial principal amount of $50,000,000, the
Class C Notes will be issued in an aggregate initial principal
amount of $145,000,000, the Class D Notes will be issued in an
aggregate initial principal amount of $90,000,000, and the Class E
Note will be issued in an aggregate initial principal amount of
$80,000,000. For each Interest Accrual Period, the Class A-1
Notes shall bear interest at a per annum rate equal to the
then applicable LIBOR plus 0.25% per annum ,
Class A-2A Notes shall bear interest at a per annum
rate equal to the then applicable LIBOR plus 0.20% per
annum , Class A-2B Notes shall bear interest at a per
annum rate equal to the then applicable LIBOR plus 0.35%
per annum , the Class B Notes shall bear interest at a
per annum rate equal to the then applicable LIBOR plus
0.40% per annum and the Class C Notes will bear
interest at a per annum rate equal to the then applicable
LIBOR plus 0.85% per annum ; provided ,
however , that the LIBOR rate on the Offered Notes
for the initial Interest Accrual Period is a four-month LIBOR rate
and for each Interest Accrual Period thereafter will be Three-Month
LIBOR. The Notes will be issued pursuant to an Indenture, dated as
of October 4, 2005 (the “ Indenture ”),
between the Trust and Wells Fargo Bank, National Association, as
Indenture Trustee (the “ Indenture Trustee ”).
The Notes will be secured by the assets of the Trust.
In addition to the Notes, the Trust
is issuing a certificate (the “ Certificate ”).
The Certificate will represent fractional undivided ownership
interests in the Trust. The Certificate will be issued pursuant to
the Trust Agreement.
The primary assets of the Trust will
be a pool of commercial business loans, or interests therein,
originated or acquired by the Company from time to time
(collectively, the “ Business Loans ”). The
Trust Depositor will acquire the Business Loans and certain related
assets from the Company pursuant to the ACAS Transfer Agreement,
dated as of October 4, 2005 (the “ Transfer
Agreement ”) between the Company and the Trust Depositor.
Pursuant to a Transfer and Servicing Agreement, dated as of
October 4, 2005 (the “ Transfer and Servicing
Agreement ”), among the Trust, the Company, the Trust
Depositor and the Indenture Trustee, the Trust Depositor will sell,
transfer and convey to the Trust, without recourse, all of its
right, title and interest in the Business Loans and certain related
assets to the Trust. Pursuant to the Indenture, as security for the
indebtedness represented by the Notes, the Trust will pledge and
grant to the Indenture Trustee a security interest in the Business
Loans and certain related assets and its rights under the Transfer
Agreement and the Transfer and Servicing Agreement. This Purchase
Agreement (the “ Agreement ”), the Trust
Agreement, the Transfer Agreement, the Transfer and Servicing
Agreement and the Indenture are referred to collectively as the
“ Transaction Documents .” Capitalized terms
used but not defined herein shall have the meanings provided in the
Transfer and Servicing Agreement.
The Offered Notes are to be offered
without being registered under the Securities Act of 1933, as
amended (the “ Securities Act ”), to
“qualified institutional buyers” in compliance with the
exemption from registration provided by Rule 144A under the
Securities Act (“ QIBs ”) who are
“qualified purchasers” (“ Qualified
Purchasers ”) for purposes of Section 3(c)(7) of the
Investment Company Act of 1940, as amended (the “ 1940
Act ”), in offshore transactions in
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reliance on Regulation S under the Securities
Act (“ Regulation S ”) except with respect of
the Class A-2A Notes prior to the Commitment Termination Date,
to QIBs in compliance with Section 4(2) of the Securities Act
who are Qualified Purchasers, and to institutional
“accredited investors” (as defined in Rule 501(a)(l),
(2), (3) or (7) under Regulation D of the Securities Act)
(“ Institutional Accredited Investors ”) who are
Qualified Purchasers that deliver a letter in the form of Exhibit
D-1 to the Indenture.
In connection with the sale of the
Offered Notes, the Company has prepared a preliminary offering
memorandum dated September 14, 2005 (including any exhibits
thereto, the “ Preliminary Memorandum ”) and a
final confidential offering memorandum dated the date hereof
(including any exhibits, amendments or supplements thereto, the
“ Final Memorandum ”, and each of the
Preliminary Memorandum and the Final Memorandum, a “
Memorandum ”) including a description of the terms of
the Offered Notes, the terms of the offering, and a description of
the Trust.
The Company, the Trust Depositor and
the Trust hereby agree with you, as the Initial Purchasers, as
follows:
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Section 2.
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Purchase
of the Offered Notes .
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(a) Subject to the terms and
conditions and in reliance upon the representations and warranties
set forth herein, the Trust agrees to sell to the Initial
Purchasers the Class A-1 Notes, the Class A-2B Notes, the
Class B Notes and the Class C Notes (collectively, the “
Purchased Notes ”), and the Representative on behalf
of the several Initial Purchasers has agreed to purchase the
aggregate principal amount of Purchased Notes set forth on
Schedule I hereto at the purchase price set forth thereon.
It is understood and agreed that the Initial Purchasers are not
acquiring, and have no obligation to acquire, the Class A-2A
Notes, the Class D Notes, the Class E Note or the
Certificate.
(b) In addition, whether or not the
transaction contemplated hereby shall be consummated, the Company
agrees to pay all other costs and expenses incident to the
performance by the Company of its obligations hereunder and under
the documents to be executed and delivered in connection with the
offering, issuance, sale and delivery of the Notes, including,
without limitation or duplication: (i) the fees and
disbursements of counsel to the Company; (ii) the fees and
expenses of any trustees or custodian due to such trustees’
or custodian’s initial expenses incurred in connection with
the issuance of the Notes and its counsel; (iii) the fees and
expenses of any bank establishing and maintaining accounts on
behalf of the holders of the Notes or in connection with the
transaction; (iv) the fees and expenses of the accountants for
the Company, including the fees for the “comfort
letters” or “agreed-upon procedures letters”
required by the Initial Purchasers, any rating agency or any
purchaser in connection with the offering, sale, issuance and
delivery of the Notes; (v) all expenses incurred in connection
with the preparation and distribution of the Preliminary Memorandum
and the Final Memorandum and other disclosure materials prepared
and distributed and all expenses incurred in connection with the
preparation and distribution of the Transaction Documents;
(vi) the fees charged by any securities rating agency for
rating the Offered Notes and the Class D Notes; (vii) the fees
for any securities identification service for any CUSIP or similar
identification number required by the purchasers or requested by
the Initial Purchasers; (viii) the
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fees and disbursements of counsel to the Initial
Purchasers; (ix) all expenses in connection with the
qualification of the Offered Notes for offering and sale under
state securities laws, including the reasonable fees and
disbursements of counsel and, if requested by the Initial
Purchasers, the cost of the preparation and reproduction of any
“blue sky” or legal investment memoranda; (x) any
federal, state or local taxes, registration or filing fees
(including Uniform Commercial Code financing statements) or other
similar payments to any federal, state or local governmental
authority in connection with the offering, sale, issuance and
delivery of the Offered Notes; and (xi) the reasonable fees
and expenses of any special counsel or other experts required to be
retained to provide advice, opinions or assistance in connection
with the offering, issuance, sale and delivery of the
Notes.
(c) It is understood and agreed that
nothing in this Agreement shall prevent the Initial Purchasers from
entering into any agency agreements, underwriting agreements or
other similar agreements governing the offer and sale of securities
with any issuer or issuers of securities, and nothing contained
herein shall be construed in any way as precluding or restricting
the Initial Purchasers’ right to sell or offer for sale any
securities issued by any person, including securities similar to,
or competing with, the Notes.
Delivery of the Offered Notes shall
be made in the form of one or more global certificates delivered to
the Indenture Trustee, as custodian for the nominee of The
Depository Trust Company, except that any Purchased Note to be sold
by the Initial Purchasers to an Institutional Accredited Investor
that is not a QIB shall be delivered in fully registered,
certificated form in the minimum denominations set forth in the
Final Memorandum at the offices of Dechert LLP, Charlotte, North
Carolina at 10:00 a.m. Charlotte, North Carolina time, on
October 4, 2005, or such other place, time or date as may be
mutually agreed upon by the Initial Purchasers and the Company (the
“ Closing Date ”) against payment by the Initial
Purchasers of the purchase price thereof to or upon the order of
the Company (on behalf of the Trust) by wire transfer payable in
same-day funds to the account specified by the Company. Subject to
the foregoing, the Purchased Notes will be registered in such names
and such denominations as the Initial Purchasers shall specify in
writing to the Company and the Indenture Trustee prior to the
Closing Date.
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Section 4.
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Representations and Warranties of the
Company .
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The Company represents and warrants
to the Initial Purchasers, as of the Closing Date, that:
(a) Each Memorandum does not and
will not, and any amendments thereof or supplement thereto and any
additional information and documents concerning the Notes delivered
by or on behalf of the Company to prospective purchasers of the
Offered Notes (collectively, such additional information and
documents, the “ Additional Offering Documents
”), each as of their respective dates or the date on which
such statement was made and as of the Closing Date, do not and will
not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements in each,
in light of the circumstances under which they were made, not
misleading; provided , that, the Company
makes
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no representation or warranty as to the
information contained in or omitted from either Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of the Initial Purchasers specifically for inclusion
therein.
(b) The Company is a Delaware
corporation, duly organized and validly existing under the laws of
the state of Delaware, has all power and authority necessary to own
or hold its properties and conduct its business in which it is
engaged as described in each Memorandum and has all licenses
necessary to carry on its business as it is now being conducted and
is licensed and qualified in each jurisdiction in which the conduct
of its business (including without limitation the originating and
acquiring of Business Loans and performing its obligations
hereunder and under the Transaction Documents) requires such
licensing or qualification.
(c) This Agreement has been duly
authorized, executed and delivered by the Company, and, assuming
due authorization, execution and delivery thereof by the other
parties hereto, constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with
its terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally or the application of
equitable principles in any proceeding, whether at law or in
equity.
(d) The Transfer Agreement and the
Transfer and Servicing Agreement have been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the other parties
thereto, constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally or the application of
equitable principles in any proceeding, whether at law or in
equity.
(e) The Offered Notes have been duly
authorized, and when executed and authenticated in accordance with
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with this Agreement, the Offered Notes
will constitute valid and binding obligations of the Trust,
enforceable against the Trust in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally or the application of equitable
principles in any proceeding, whether at law or in equity, and will
be entitled to the benefits of the Indenture.
(f) Other than as set forth in or
contemplated by each Memorandum, there are no legal or governmental
proceedings pending to which the Company is a party or of which any
property or assets of the Company are the subject of which, if
determined adversely to the Company, would individually or in the
aggregate have a material adverse effect on the financial position,
business or results of operations of the Company and its
subsidiaries taken as a whole or on the performance by the Company
of its obligations hereunder or under the Transaction Documents (a
“ Material Adverse Effect ”); and, to the best
knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
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(g) The execution, delivery and
performance of this Agreement and the other Transaction Documents
to which it is a party by the Company and the consummation by the
Company of the transactions contemplated herein and therein and in
all documents relating to the Notes will not result in any material
breach or violation of, or constitute a material default under, any
agreement or instrument to which the Company is a party or to which
any of its properties or assets are subject, except for such of the
foregoing as to which relevant waivers or amendments have been
obtained and are in full force and effect, nor will any such action
result in a violation of the Certificate of Incorporation or
By-Laws of the Company or any law or any order, decree, rule or
regulation of any court or governmental agency having jurisdiction
over the Company or its properties.
(h) The Trust is not, and, upon
giving effect to the transactions contemplated hereby, will not be
required to register as an “investment company” under
the 1940 Act, as amended.
(i) Assuming the Initial
Purchasers’ representations are true and accurate, it is not
necessary in connection with the offer, sale and delivery of the
Offered Notes in the manner contemplated by this Agreement and the
Final Memorandum to register the Offered Notes under the Securities
Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended.
(j) The Offered Notes satisfy the
requirements set forth in Rule 144A(d)(3) under the Securities
Act.
(k) At the time of execution and
delivery of the Transfer and Servicing Agreement and after giving
effect to any releases pursuant to the Warehouse Transactions, the
Trust Depositor owned the Business Loans free and clear of all
liens, encumbrances, adverse claims or security interests (“
Liens ”) except for Permitted Liens, and the Trust
Depositor had the power and authority to transfer the Business
Loans to the Trust.
(l) Upon the execution and delivery
of the Transaction Documents, payment by the Initial Purchasers for
the Offered Notes and delivery to the Initial Purchasers of the
Offered Notes, the Trust will own the Business Loans and the
Initial Purchasers will acquire title to the Offered Notes, in each
case free of Liens except such Liens as may be created or granted
by the Initial Purchasers and those permitted by the Transaction
Documents.
(m) Assuming as to any requirements
under the Securities Act only, the accuracy of the Initial
Purchasers’ representations, no consent, authorization or
order of, or filing or registration with, any court or governmental
agency is required for the issuance and sale of the Offered Notes
or the execution, delivery and performance by the Company of this
Agreement or the other Transaction Documents to which it is a
party, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained or as may be
required under state securities or blue sky laws in connection with
the sale and delivery of the Offered Notes in the manner
contemplated herein.
(n) The Business Loans, individually
and in the aggregate, have the characteristics described in each
Memorandum.
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(o) Each of the representations and
warranties of the Company and the Trust Depositor set forth in each
of the other Transaction Documents is true and correct in all
material respects.
(p) Any taxes, fees and other
governmental charges payable in connection with the execution,
delivery and issuance of this Agreement and the other Transaction
Documents and the Notes have been or will be paid by the Company
prior to the Closing Date.
(q) No adverse selection procedures
were used in selecting the Business Loans from among the loans that
meet the representations and warranties of the Company contained in
the Transfer Agreement and that are included in the Loan
Pool.
(r) Neither the Company nor any
affiliate thereof nor anyone acting on their behalf has, directly
or indirectly (except to or through the Initial Purchasers), sold
or offered, or attempted to offer or sell, or solicited any offers
to buy, or otherwise approached or negotiated in respect of, any of
the Offered Notes and neither the Company nor any of its affiliates
will do any of the foregoing. As used herein, the terms
“offer” and “sale” have the meanings
specified in Section 2(3) of the Securities Act.
(s) Neither the Company nor any
affiliate (as defined in Rule 501(b) of Regulation D under the
Securities Act (such regulation, “ Regulation D
”)) of the Company has directly, or through any agent (other
than the Initial Purchasers, as to which the Company makes no
representation or warranty), sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act) which is or may be integrated
with the sale of the Offered Notes in a manner that would require
the registration under the Securities Act of the offerings
contemplated by the Final Memorandum or engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offerings of the Offered
Notes.
(t) With respect to any Offered
Notes subject to the provisions of Regulation S, the Company has
not offered or sold such Offered Notes during the Distribution
Compliance Period to a person (other than any Initial Purchaser)
who is within the United States or its possessions or to a United
States person. For this purpose, the terms “Distribution
Compliance Period”, “United States or its
possessions” and “United States person” are
defined as such terms are defined for purposes of Treas. Reg.
§ 1.163-5(c)(2)(i)(D).
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Section 5.
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Sale of
Offered Notes to the Initial Purchasers
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The sale of the Purchased Notes to
the Initial Purchasers will be made without registration of the
Purchased Notes under the Securities Act, in reliance upon the
exemption therefrom provided by Section 4(2) of the Securities
Act.
(a) The Company and the Initial
Purchasers agree that the Purchased Notes will be offered and sold
only in transactions exempt from registration under the Securities
Act. The Company and the Initial Purchasers will each reasonably
believe at the time of any sale of the Purchased Notes by the
Company through the Initial Purchasers, as initial purchasers,
(i) that either (A) each purchaser of the Purchased Notes
is an institutional investor that is (1) a QIB who is a
Qualified Purchaser in transactions meeting the requirements of
Rule 144A under the
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Securities Act and provides the Initial
Purchasers with a written certification in substantially the form
attached as Exhibit D-2 to the Indenture, or (2) an
Institutional Accredited Investor who is a Qualified Purchaser who,
in either case, purchases for its own account or for any
discretionary account for which it is acquiring the Purchased Notes
and provides the Initial Purchasers with a written certification in
substantially the form attached as Exhibit D-1 to the Indenture, or
(B) each purchaser is acquiring the Purchased Notes in an
offshore transaction meeting the requirements of Regulation S, and
(ii) that the offering of the Purchased Notes will be made in
a manner it reasonably believes will enable the offer and sale of
the Purchased Notes to be exempt from registration under state
securities (or “blue sky”) laws; and each such party
understands that no action has been taken to permit a public
offering in any jurisdiction where action would be required for
such purpose. The Company and the Initial Purchasers each further
agree not to (x) engage in any activity that would constitute
a public offering of the Purchased Notes within the meaning of
Section 4(2) of the Securities Act or (y) offer or sell
the Purchased Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D), including
the methods described in Rule 502(c) of Regulation D, in connection
with any offer or sale of the Purchased Notes.
(b) Each Initial Purchaser hereby
represents and warrants to and agrees with the Company, that
(i) such Initial Purchaser is a QIB, and (ii) such
Initial Purchaser will offer the Purchased Notes only (A) to
persons who such Initial Purchaser reasonably believes are QIBs who
are Qualified Purchasers in transactions meeting the requirements
of Rule 144A, (B) to institutional investors who such Initial
Purchaser reasonably believes are Institutional Accredited
Investors who are Qualified Purchasers or (C) other than in
the case of the Class A-2A Notes prior to the Commitment
Termination Date, in offshore transactions in reliance on
Regulation S. Each Initial Purchaser further agrees that it will
(x) deliver to each Person who purchases Purchased Notes from
such Initial Purchaser, at or prior to the confirmation of sale, a
copy of the Final Memorandum, as then amended or supplemented,
which Final Memorandum will include a Notice to Investors in the
form attached hereto as Exhibit A , and (y) prior to
any sale of the Purchased Notes to an Institutional Accredited
Investor that such Initial Purchaser does not reasonably believe is
a QIB, it will receive from such Institutional Accredited Investor
a written certification in substantially the form attached as
Exhibit D-1 to the Indenture.
(c) Each Initial Purchaser
represents and warrants, solely as to itself, that it is duly
authorized and possesses the requisite corporate power to enter
into this Agreement.
(d) Each Initial Purchaser
represents and warrants, solely as to itself, that there is no
action, suit or proceeding pending against or, to the knowledge of
such Initial Purchaser, threatened against or affecting, such
Initial Purchaser before any court or arbitrator or any government
body, agency, or official which could materially adversely affect
the ability of such Initial Purchaser to perform its obligations
under this Agreement.
(e) Each Initial Purchaser
represents and agrees, solely as to itself, that all offers and
sales of the Purchased Notes by it to non-United States persons,
prior to the expiration of the Distribution Compliance Period, will
be made only in accordance with the provisions of Rule 903 of
Regulation S (except to the extent of any beneficial owners thereof
who acquired an interest therein pursuant to another exemption from
registration under the Securities Act and who will take delivery of
a beneficial ownership interest in a Global Note, as contemplated
in the
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Indenture) and only upon the receipt of the
certification of beneficial ownership of the securities by a
non-United States person in the form provided in the Indenture. For
this purpose, the terms “Distribution Compliance
Period” and “United States person” are defined as
such terms are defined for purposes of Treas. Reg.
§ 1.163-5(c)(2)(i)(D).
(f) Each Initial Purchaser
represents and warrants, solely as to itself, that (i) it has
only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act 2000 (the
“ FSMA ”)) received by it in connection with the
issue or sale of any of the Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise invol