THE COMPANY'S INTERNAL CONTROL OVER
FINANCIAL REPORTING (WHETHER OR NOT REMEDIATED).
(AA)
TAXES.
THE COMPANY AND ITS SIGNIFICANT SUBSIDIARIES HAVE PAID ALL
FEDERAL, STATE, LOCAL AND FOREIGN TAXES, EXCEPT FOR ANY TAXES AS MAY BE
CONTESTED BY THE COMPANY IN GOOD FAITH AND BY APPROPRIATE PROCEEDINGS, AND FILED
ALL TAX RETURNS REQUIRED TO BE PAID OR FILED THROUGH THE DATE HEREOF; AND EXCEPT
AS OTHERWISE DISCLOSED IN EACH OF THE DISCLOSURE PACKAGE AND THE FINAL OFFERING
MEMORANDUM, THERE IS NO MATERIAL TAX DEFICIENCY THAT HAS BEEN, OR COULD
REASONABLY BE EXPECTED TO BE, SUSTAINED AGAINST THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR ANY OF THEIR RESPECTIVE PROPERTIES OR ASSETS.
(BB)
DISCLOSURE CONTROLS.
THE COMPANY AND ITS SUBSIDIARIES MAINTAIN AN
EFFECTIVE SYSTEM OF "DISCLOSURE CONTROLS AND PROCEDURES" (AS DEFINED IN RULE
13A-15 OF THE EXCHANGE ACT) THAT IS DESIGNED TO ENSURE THAT INFORMATION REQUIRED
TO BE DISCLOSED BY THE COMPANY IN REPORTS THAT IT FILES OR SUBMITS UNDER THE
EXCHANGE ACT IS RECORDED, PROCESSED, SUMMARIZED AND REPORTED WITHIN THE TIME
PERIODS SPECIFIED IN THE COMMISSION'S RULES AND FORMS, INCLUDING CONTROLS AND
PROCEDURES DESIGNED TO ENSURE THAT SUCH INFORMATION IS ACCUMULATED AND
COMMUNICATED TO THE COMPANY'S MANAGEMENT AS APPROPRIATE TO ALLOW TIMELY
DECISIONS REGARDING REQUIRED DISCLOSURE.
THE COMPANY AND ITS SUBSIDIARIES HAVE
CARRIED OUT EVALUATIONS OF THE EFFECTIVENESS OF THEIR DISCLOSURE CONTROLS AND
PROCEDURES AS REQUIRED BY RULE 13A-15 OF THE EXCHANGE ACT.
Any certificate signed by an officer of the Company and delivered to the Initial
Purchaser or its counsel shall be deemed to be a representation and warranty by
the Company to the Initial Purchaser as to the matters set forth therein.
7
SECTION 2.
PURCHASE, SALE AND DELIVERY OF THE NOTES.(A)
THE FIRM NOTES.
THE
COMPANY AGREES TO ISSUE AND SELL TO THE INITIAL PURCHASER THE FIRM NOTES UPON
THE TERMS HEREIN SET FORTH.
ON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND
AGREEMENTS HEREIN CONTAINED, AND UPON THE TERMS BUT SUBJECT TO THE CONDITIONS
HEREIN SET FORTH, THE INITIAL PURCHASER AGREES TO PURCHASE FROM THE COMPANY THE
PRINCIPAL AMOUNT OF FIRM NOTES AT A PURCHASE PRICE OF 100% OF THE AGGREGATE
PRINCIPAL AMOUNT THEREOF.
(B)
THE CLOSING DATE.
DELIVERY OF THE FIRM NOTES TO BE PURCHASED BY THE
INITIAL PURCHASER AND PAYMENT THEREFOR SHALL BE MADE AT THE OFFICES OF DAVIS
POLK & WARDWELL, 450 LEXINGTON AVENUE, NEW YORK, NEW YORK (OR SUCH OTHER PLACE
AS MAY BE AGREED TO BY THE COMPANY AND THE INITIAL PURCHASER) AT 10:00 A.M. NEW
YORK TIME, ON APRIL 11, 2007, WHICH DATE AND TIME MAY BE POSTPONED BY AGREEMENT
BETWEEN THE INITIAL PURCHASER AND THE COMPANY (THE TIME AND DATE OF SUCH CLOSING
ARE CALLED THE "CLOSING DATE").
(C)
THE OPTIONAL NOTES; THE OPTION CLOSING DATE.
IN ADDITION, ON THE BASIS OF
THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS HEREIN CONTAINED, AND UPON THE
TERMS BUT SUBJECT TO THE CONDITIONS HEREIN SET FORTH, THE COMPANY HEREBY GRANTS
AN OPTION TO THE INITIAL PURCHASER TO PURCHASE UP TO $150,000,000 IN AGGREGATE
PRINCIPAL AMOUNT