means any day on which the New York Stock Exchange, Inc. is
open for trading, (c) except where otherwise expressly provided, the term
"affiliate" has the meaning set forth in Rule 405 under the Securities Act ,
(d) the term "Transaction Documents" means the "Transaction Documents," as
defined in the Indenture, plus the Type 1 Residual Certificate, and (e) the
"Relevant Date" means the date on which representations, warranties and
agreements are being made by the Co-Issuers or the Parent Companies (as the case
may be) in accordance with Section 1(c) or 1(d).
The Base Indenture is attached
hereto as Exhibit 2.
The Supplement is attached hereto as Exhibit 3. As used
herein
1.
Representations, Warranties and Agreements of the Co-Issuers and
the Parent Companies
(a)
Each of the Co-Issuers, jointly and severally, represents and
warrants to, and agrees with, the Initial Purchaser, as of the Closing Date,
that:
(I)
AS OF THE CLOSING DATE, THE DRAFT OFFERING MEMORANDUM PRESENTS
FAIRLY, IN ALL MATERIAL RESPECTS, THE BUSINESS, RESULTS OF OPERATIONS AND
FINANCIAL CONDITION OF THE CO-ISSUERS.
AS OF THE RELEVANT DATE, THE OFFERING
MEMORANDUM DOES NOT INCLUDE ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO
STATE ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE
STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING;
(II)
AS OF THE RELEVANT DATE, THE OFFERING MEMORANDUM CONTAINS ALL OF
THE INFORMATION THAT, IF REQUESTED BY A PROSPECTIVE PURCHASER OF THE SECURITIES,
WOULD BE REQUIRED TO BE PROVIDED TO SUCH PROSPECTIVE PURCHASER PURSUANT TO
RULE 144A(D)(4) UNDER THE SECURITIES ACT;
(III)
THE PRELIMINARY MARKETING MATERIALS AND THE OFFERING MEMORANDUM
HAVE BEEN OR WILL HAVE BEEN PREPARED BY THE CO-ISSUERS AND THE PARENT COMPANIES
FOR USE BY THE INITIAL PURCHASER IN CONNECTION WITH THE EXEMPT RESALES (AS
DEFINED BELOW).
NO ORDER OR DECREE PREVENTING THE USE OF THE PRELIMINARY
MARKETING MATERIALS OR THE OFFERING MEMORANDUM, OR ANY ORDER ASSERTING THAT THE
TRANSACTIONS
3
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 CO-ISSUERS OR THE PARENT
COMPANIES, IS CONTEMPLATED;
(IV)
AS OF THE RELEVANT DATE, EACH OF THE BASE INDENTURE, THE
SUPPLEMENT AND THE SECURITIES WILL CONFORM IN ALL MATERIAL RESPECTS TO THE
DESCRIPTION THEREOF CONTAINED IN THE OFFERING MEMORANDUM;
(V)
ASSUMING THE ACCURACY OF THE REPRESENTATIONS AND WARRANTIES OF THE
INITIAL PURCHASER CONTAINED IN SECTION 2 AND THEIR COMPLIANCE WITH THE
AGREEMENTS SET FORTH THEREIN, IT IS NOT NECESSARY, IN CONNECTION WITH THE
ISSUANCE AND SALE OF THE SECURITIES TO THE INITIAL PURCHASER AND THE OFFER,
RESALE AND DELIVERY OF THE SECURITIES BY THE INITIAL PURCHASER IN THE MANNER
CONTEMPLATED BY THIS AGREEMENT AND THE INDENTURE, TO REGISTER THE SECURITIES
UNDER THE SECURITIES ACT OR TO QUALIFY THE INDENTURE UNDER THE TRUST INDENTURE
ACT OF 1939, AS AMENDED;
(VI)
EACH OF THE CO-ISSUERS HAS BEEN DULY