(B)
THE CLOSING DATE.
DELIVERY OF CERTIFICATES
FOR THE SECURITIES IN DEFINITIVE FORM TO BE PURCHASED BY THE INITIAL PURCHASERS
AND PAYMENT THEREFOR SHALL BE MADE AT THE OFFICES OF CAHILL GORDON & REINDEL
LLP, 80 PINE STREET, NEW YORK, NEW YORK 10005 (OR SUCH OTHER PLACE AS MAY BE
AGREED TO BY THE COMPANY AND THE REPRESENTATIVE AT 9:00 A.M. NEW YORK CITY TIME,
ON MAY 5, 2010, OR SUCH OTHER TIME AND DATE AS THE REPRESENTATIVE SHALL
DESIGNATE BY NOTICE TO THE COMPANY (THE TIME AND DATE OF SUCH CLOSING ARE CALLED
THE "CLOSING DATE").
THE COMPANY HEREBY ACKNOWLEDGES THAT CIRCUMSTANCES UNDER
WHICH THE REPRESENTATIVE MAY PROVIDE NOTICE TO POSTPONE THE CLOSING DATE AS
ORIGINALLY SCHEDULED INCLUDE, BUT ARE IN NO WAY LIMITED TO, ANY DETERMINATION BY
THE COMPANY OR THE INITIAL PURCHASERS TO RECIRCULATE TO INVESTORS COPIES OF AN
AMENDED OR SUPPLEMENTED OFFERING MEMORANDUM.
14
(C)
DELIVERY OF THE SECURITIES.
THE COMPANY
SHALL DELIVER, OR CAUSE TO BE DELIVERED, TO THE REPRESENTATIVE FOR THE ACCOUNTS
OF THE SEVERAL INITIAL PURCHASERS CERTIFICATES FOR THE NOTES AT THE CLOSING DATE
AGAINST THE IRREVOCABLE RELEASE OF A WIRE TRANSFER OF IMMEDIATELY AVAILABLE
FUNDS FOR THE AMOUNT OF THE PURCHASE PRICE THEREFOR.
THE CERTIFICATES FOR THE
NOTES SHALL BE IN SUCH DENOMINATIONS AND REGISTERED IN THE NAME OF CEDE & CO.,
AS NOMINEE OF THE DEPOSITARY, PURSUANT TO THE DTC AGREEMENT, AND SHALL BE MADE
AVAILABLE FOR INSPECTION ON THE BUSINESS DAY PRECEDING THE CLOSING DATE AT A
LOCATION IN NEW YORK CITY, AS THE REPRESENTATIVE MAY DESIGNATE.
TIME SHALL BE
OF THE ESSENCE, AND DELIVERY AT THE TIME AND PLACE SPECIFIED IN THIS AGREEMENT
IS A FURTHER CONDITION TO THE OBLIGATIONS OF THE INITIAL PURCHASERS.
(D)
INITIAL PURCHASERS AS QUALIFIED
INSTITUTIONAL BUYER.
EACH INITIAL PURCHASER SEVERALLY AND NOT JOINTLY
REPRESENTS AND WARRANTS TO, AND AGREES WITH, THE COMPANY THAT:
(I)
IT WILL OFFER AND SELL SECURITIES ONLY TO (A) PERSONS WHO
IT REASONABLY BELIEVES ARE "QUALIFIED INSTITUTIONAL BUYERS" WITHIN THE MEANING
OF RULE 144A ( "QUALIFIED INSTITUTIONAL BUYERS") IN TRANSACTIONS MEETING THE
REQUIREMENTS OF RULE 144A OR (B) UPON THE TERMS AND CONDITIONS SET FORTH IN
ANNEX I TO THIS AGREEMENT;
(II)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT; AND
(III)
IT WILL NOT OFFER OR SELL SECURITIES BY, ANY FORM OF GENERAL
SOLICITATION OR GENERAL ADVERTISING, INCLUDING BUT NOT LIMITED TO THE METHODS
DESCRIBED IN RULE 502(C) UNDER THE SECURITIES ACT.
SECTION 3.
ADDITIONAL COVENANTS.
EACH OF THE
COMPANY AND THE GUARANTORS, JOINTLY AND SEVERALLY, FURTHER COVENANTS AND AGREES
WITH EACH INITIAL PURCHASER AS FOLLOWS:
(a)
Preparation of Final Offering Memorandum;
Initial Purchasers' Review of Proposed Amendments and Supplements and Company
Additional Written Communications.
As promptly as practicable following the
Time of Sale and in any event not later than the second Business Day following
the date hereof, the Company will prepare and deliver to the Initial Purchasers
the Final Offering Memorandum, which shall consist