defined) in the
Registration Rights Agreement.
The Company and the Subsidiary Guarantors hereby confirm their agreement with
the several Initial Purchasers concerning the purchase and resale of the
Securities, as follows:
1.
Purchase and Resale of the Securities.
(a)
The Company agrees
to issue and sell the Securities to the several Initial Purchasers as provided
in this Agreement, and each Initial Purchaser, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Initial Purchaser's name in Schedule 1 hereto at a price equal 95.762% of
the principal amount thereof plus accrued interest, if any, from November 12,
2009 to the Closing Date.
The Company will not be obligated to deliver any of
the Securities except upon payment for all the Securities to be purchased as
provided herein.
(B)
THE COMPANY UNDERSTANDS THAT THE INITIAL PURCHASERS INTEND TO
OFFER THE SECURITIES FOR RESALE ON THE TERMS SET FORTH IN EACH OF THE TIME OF
SALE INFORMATION.
EACH INITIAL PURCHASER, SEVERALLY AND NOT JOINTLY,
REPRESENTS, WARRANTS AND AGREES THAT:
(I)
IT IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT (A "QIB") AND AN ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501(A) UNDER THE SECURITIES ACT;
(II)
IT HAS NOT SOLICITED OFFERS FOR, OR OFFERED OR SOLD, AND WILL NOT
SOLICIT OFFERS FOR, OR OFFER OR SELL, THE SECURITIES BY MEANS OF ANY FORM OF
GENERAL SOLICITATION OR GENERAL ADVERTISING WITHIN THE MEANING OF RULE 502(C) OF
REGULATION D UNDER THE SECURITIES ACT ("REGULATION D") OR IN ANY MANNER
INVOLVING A PUBLIC OFFERING WITHIN THE MEANING OF SECTION 4(2) OF THE SECURITIES
ACT; AND
(III)
IT HAS NOT SOLICITED OFFERS FOR, OR OFFERED OR SOLD, AND WILL NOT
SOLICIT OFFERS FOR, OR OFFER OR SELL, THE SECURITIES AS PART OF THEIR INITIAL
OFFERING EXCEPT:
(A)
WITHIN THE UNITED STATES TO PERSONS WHOM IT REASONABLY BELIEVES TO BE QIBS
IN TRANSACTIONS PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") AND
IN CONNECTION WITH EACH SUCH SALE, IT HAS TAKEN OR WILL TAKE REASONABLE
2
STEPS TO ENSURE THAT THE PURCHASER OF THE SECURITIES IS AWARE THAT SUCH SALE IS
BEING MADE IN RELIANCE ON RULE 144A; OR
(B)
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ANNEX C HERETO.
(C)
EACH INITIAL PURCHASER ACKNOWLEDGES AND AGREES THAT THE COMPANY
AND, FOR PURPOSES OF THE OPINIONS TO BE DELIVERED TO THE INITIAL PURCHASERS
PURSUANT TO SECTIONS 6 (F)(I) AND 6(G), COUNSEL FOR THE COMPANY AND COUNSEL FOR
THE INITIAL PURCHASERS, RESPECTIVELY, MAY RELY UPON THE ACCURACY OF THE
REPRESENTATIONS AND WARRANTIES OF THE INITIAL PURCHASERS, AND COMPLIANCE BY THE
INITIAL PURCHASERS WITH THEIR AGREEMENTS, CONTAINED IN PARAGRAPH (B) ABOVE
(INCLUDING ANNEX C HERETO), AND EACH INITIAL PURCHASER HEREBY CONSENTS TO SUCH
RELIANCE.
(D)
THE COMPANY ACKNOWLEDGES AND AGREES THAT THE INITIAL PURCHASERS
MAY OFFER AND