BY ANY PERSON OR ENTITY ALLEGING
POTENTIAL LIABILITY OF EITHER OF THE ISSUERS (OR AGAINST ANY PERSON OR ENTITY
FOR WHOSE ACTS OR OMISSIONS EITHER OF THE ISSUERS IS OR MAY REASONABLY BE
EXPECTED TO BE LIABLE, EITHER CONTRACTUALLY OR BY OPERATION OF LAW) FOR
INVESTIGATORY, CLEANUP, OR OTHER RESPONSE COSTS, OR NATURAL RESOURCES OR
PROPERTY DAMAGES, OR PERSONAL INJURIES, ATTORNEY'S FEES OR PENALTIES RELATING TO
(A) THE PRESENCE, OR RELEASE INTO THE ENVIRONMENT, OF ANY MATERIALS OF
ENVIRONMENTAL CONCERN AT ANY LOCATION, OR (B) CIRCUMSTANCES FORMING THE BASIS OF
ANY VIOLATION OR POTENTIAL VIOLATION, OF ANY ENVIRONMENTAL LAW (COLLECTIVELY,
"ENVIRONMENTAL CLAIMS"); AND (V) TO THE KNOWLEDGE OF THE ISSUERS, THERE ARE NO
PAST OR PRESENT ACTIONS, ACTIVITIES, CIRCUMSTANCES, CONDITIONS, EVENTS OR
INCIDENTS THAT COULD REASONABLY BE EXPECTED TO FORM THE BASIS OF ANY
ENVIRONMENTAL CLAIM.
EACH OF THE ISSUERS, AS APPROPRIATE, HAS CONDUCTED ENVIRONMENTAL INVESTIGATIONS
OF, AND HAVE REVIEWED REASONABLY AVAILABLE INFORMATION REGARDING, THE BUSINESS,
PROPERTIES AND OPERATIONS OF EACH OF THE ISSUERS, AND OF OTHER PROPERTIES WITHIN
THE VICINITY OF THEIR BUSINESS, PROPERTIES AND OPERATIONS, AS APPROPRIATE FOR
THE CIRCUMSTANCES OF EACH SUCH PROPERTY AND OPERATION; ON THE BASIS OF SUCH
REVIEWS, INVESTIGATIONS AND INQUIRIES, THE ISSUERS HAVE REASONABLY CONCLUDED
THAT ANY COSTS AND LIABILITIES ASSOCIATED WITH SUCH MATTERS WOULD NOT HAVE,
SINGULARLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT OR OTHERWISE REQUIRE
DISCLOSURE IN THE OFFERING CIRCULAR.
(NN)
MARKET DATA.
ALL STATISTICAL AND MARKET AND
INDUSTRY RELATED DATA INCLUDED IN THE OFFERING CIRCULAR ARE BASED ON OR DERIVED
FROM SOURCES WHICH THE ISSUERS BELIEVE TO BE RELIABLE AND ACCURATE.
(OO)
REPRESENTATIONS AND WARRANTIES.
EACH CERTIFICATE
SIGNED PURSUANT TO SECTION 9(A)(VIII) BY ANY OFFICER OF EITHER OF THE ISSUERS
AND DELIVERED TO THE INITIAL PURCHASER OR
19
COUNSEL FOR THE INITIAL PURCHASER PURSUANT TO THIS AGREEMENT SHALL BE DEEMED TO
BE A REPRESENTATION AND WARRANTY BY SUCH ISSUER OR GUARANTOR TO THE INITIAL
PURCHASER AS TO THE MATTERS COVERED THEREBY.
7.
REPRESENTATIONS AND WARRANTIES OF THE
INITIAL PURCHASER.
THE INITIAL PURCHASER REPRESENTS AND WARRANTS TO THE ISSUERS
THAT:
(A)
QIB.
IT IS A QIB WITH SUCH KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS AS IS NECESSARY IN ORDER TO
EVALUATE THE MERITS AND RISKS OF AN INVESTMENT IN THE NOTES.
(B)
ELIGIBLE PURCHASERS.
IT (I) IS NOT
ACQUIRING THE NOTES WITH A VIEW TO ANY DISTRIBUTION THEREOF THAT WOULD VIOLATE
THE ACT OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND (II) WILL BE SOLICITING OFFERS FOR THE NOTES ONLY
FROM, AND WILL BE OFFERING AND SELLING THE NOTES ONLY TO, (A) PERSONS IN THE
UNITED STATES WHOM IT REASONABLY BELIEVES TO BE QIBS IN RELIANCE ON THE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT PROVIDED BY RULE 144A
UNDER THE ACT, AND (B) ACCREDITED INVESTORS THAT EXECUTE AND DELIVER TO THE
ISSUERS AND THE INITIAL PURCHASER AN ACCREDITED INVESTOR LETTER.
(C)
NO GENERAL SOLICITATION.
NO FORM OF
GENERAL SOLICITATION OR GENERAL ADVERTISING WITHIN THE MEANING