RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR (D) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY,
THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE."
You have advised the Company that you will make offers (the "Exempt
Resales") of the Securities purchased by you hereunder on the terms set forth in
each of the Pricing Disclosure Package and the Offering Memorandum, as amended
or supplemented, solely to persons (the "Eligible Purchasers") whom you
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Securities Act ("QIBs"). You will offer the Securities to
Eligible Purchasers initially at a price equal to 100% of the principal amount
thereof plus accrued interest, if any. Such price may be changed at any time
without notice.
Holders (including subsequent transferees) of the Securities will have the
registration rights set forth in a registration rights agreement substantially
in the form attached hereto as Exhibit A and in accordance with the terms set
forth in the Preliminary Offering Memorandum (the "Registration Rights
Agreement") between the Company and the Initial Purchasers to be dated July 27,
2007 (the "Closing Date"), for so long as such Securities constitute "Transfer
Restricted Securities" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company will agree to file
with the Commission under the circumstances set forth therein, a shelf
registration statement under the Securities Act (the
3
"Resale Registration Statement") relating to resales by holders of the
Securities and the Underlying Securities.
2. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees as follows:
(a) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will satisfy the requirements set forth in
Rule 144A(d)(3).
(b) Neither the Company nor any subsidiary is, and after giving effect
to the offer and sale of the Securities and the application of the proceeds
therefrom as described under "Use of Proceeds" in each of the Pricing Disclosure