counsel for the
Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consent to such reliance.
4.
PURCHASE, SALE AND DELIVERY.
(A)
ON THE BASIS OF THE REPRESENTATIONS,
WARRANTIES AND COVENANTS CONTAINED IN THIS AGREEMENT, AND SUBJECT TO ITS TERMS
AND CONDITIONS, THE COMPANY AGREES TO ISSUE AND SELL TO EACH INITIAL PURCHASER,
AND EACH INITIAL PURCHASER AGREES, SEVERALLY AND NOT JOINTLY, TO PURCHASE FROM
THE COMPANY, THE PRINCIPAL AMOUNTS OF INITIAL NOTES SET FORTH OPPOSITE THE NAME
OF SUCH INITIAL PURCHASER ON SCHEDULE I. THE PURCHASE PRICE FOR THE INITIAL
NOTES WILL BE $957.60 PER $1,000 PRINCIPAL AMOUNT INITIAL NOTE.
(B)
ON THE CLOSING DATE, THE COMPANY SHALL
DELIVER TO THE INITIAL PURCHASERS, IN SUCH DENOMINATION OR DENOMINATIONS AND
REGISTERED IN SUCH NAME OR NAMES AS THE INITIAL PURCHASERS REQUEST UPON NOTICE
TO THE COMPANY, (I) ONE OR MORE INITIAL NOTES IN DEFINITIVE GLOBAL FORM,
REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY
("DTC"), HAVING AN AGGREGATE AMOUNT CORRESPONDING TO THE AGGREGATE PRINCIPAL
AMOUNT OF THE INITIAL NOTES SOLD PURSUANT TO EXEMPT RESALES TO QIBS (THE "GLOBAL
NOTE") AND (II) IF ANY EXEMPT RESALES ARE MADE IN RELIANCE ON REGULATION S, ONE
OR MORE INITIAL NOTES IN DEFINITIVE FORM, REGISTERED IN THE NAME OF CEDE & CO.,
AS NOMINEE OF DTC, HAVING AN AGGREGATE AMOUNT CORRESPONDING TO THE AGGREGATE
AMOUNT OF THE INITIAL NOTES, IF ANY, SOLD PURSUANT TO EXEMPT RESALES IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S (THE "REGULATION S GLOBAL NOTE"),
AGAINST PAYMENT OF THE PURCHASE PRICE THEREFOR BY WIRE TRANSFER OF SAME-DAY
FUNDS TO THE ACCOUNT OF THE COMPANY, PREVIOUSLY DESIGNATED BY IT IN WRITING.
SUCH DELIVERY OF AND PAYMENT FOR THE INITIAL NOTES SHALL BE MADE AT THE OFFICES
OF LATHAM & WATKINS LLP, 885 THIRD AVENUE, SUITE 1000, NEW YORK, NEW YORK, 10022
OR SUCH OTHER LOCATION AS MAY BE MUTUALLY ACCEPTABLE.
SUCH DELIVERY AND PAYMENT
SHALL BE MADE AT 9:30 A.M., NEW YORK CITY TIME, ON FEBRUARY 23, 2004 OR AT SUCH
OTHER TIME AS SHALL BE AGREED UPON BY THE INITIAL PURCHASERS AND THE COMPANY.
THE TIME AND DATE OF SUCH DELIVERY AND PAYMENT ARE HEREIN CALLED THE "CLOSING
DATE."
THE GLOBAL NOTE AND THE
20
Regulation S Global Note shall be made available to the Initial Purchasers for
inspection not later than 5:00 p.m., New York City time, on the business day
immediately preceding the Closing Date.
5.
OFFERING BY INITIAL PURCHASERS.
THE
INITIAL PURCHASERS PROPOSE TO MAKE AN OFFERING OF THE SECURITIES AT THE PRICE
AND UPON THE TERMS SET FORTH IN THE OFFERING MEMORANDUM AS SOON AS PRACTICABLE
AFTER THIS AGREEMENT IS ENTERED INTO AND AS, IN THE JUDGMENT OF THE INITIAL
PURCHASERS, IS ADVISABLE.
6.
AGREEMENTS OF THE COMPANY AND THE
GUARANTOR.
EACH OF THE COMPANY AND THE GUARANTOR COVENANTS AND AGREES WITH THE
INITIAL PURCHASERS THAT:
(A)
THE COMPANY AND THE GUARANTOR SHALL ADVISE
THE INITIAL PURCHASERS PROMPTLY AND, IF REQUESTED BY