The Holder shall have completed, executed and delivered to the
Company a letter of transmittal in the form attached as Exhibit B hereto (the
"Letter of Transmittal");
(c)
The Holder shall have delivered, or caused to be delivered, to the
Company the Old Notes being exchanged pursuant to this Agreement in accordance
with the terms hereof and the Letter of Transmittal; and
(D)
THE HOLDER SHALL HAVE FURNISHED TO THE COMPANY A CERTIFICATE,
DATED AS OF THE CLOSING DATE, OF A DULY AUTHORIZED OFFICER OF THE HOLDER, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT
(X) THE REPRESENTATIONS AND WARRANTIES OF THE HOLDER CONTAINED IN ARTICLE II
HEREOF WERE TRUE AND CORRECT ON THE DATE HEREOF AND ARE TRUE AND CORRECT ON THE
CLOSING DATE (AS THOUGH MADE ON SUCH DATE) AND (Y) THE HOLDER HAS COMPLIED IN
ALL MATERIAL RESPECTS WITH ALL OF ITS AGREEMENTS AND COVENANTS CONTAINED HEREIN
THAT ARE REQUIRED TO BE PERFORMED PRIOR TO THE CLOSING.
SECTION 1.4
WAIVERS; COMPLIANCE WITH CONFIDENTIALITY AGREEMENT.
THE
HOLDER HEREBY ACKNOWLEDGES AND AGREES THAT: (I) DEUTSCHE BANK SECURITIES INC.
("DEUTSCHE BANK") HAS ACTED AS AGENT FOR THE COMPANY IN CONNECTION WITH THE NOTE
EXCHANGE AND CONSENTS TO DEUTSCHE BANK'S ACTIONS IN THAT REGARD AND FROM AND
AFTER THE CLOSING WAIVES ANY AND ALL CLAIMS, ACTIONS, LIABILITIES, DAMAGES OR
DEMANDS THE HOLDER MAY HAVE AGAINST DEUTSCHE BANK IN CONNECTION WITH ANY ALLEGED
CONFLICT OF INTEREST ARISING FROM DEUTSCHE BANK'S ENGAGEMENT AS AN AGENT OF THE
COMPANY WITH RESPECT TO THE EXCHANGE BY THE COMPANY AND THE HOLDER OF NEW NOTES
FOR OLD NOTES; (II) SUBJECT TO SECTION 4.1 BELOW, THE COMPANY MAY ENTER INTO ONE
OR MORE TRANSACTIONS FROM TIME TO TIME WITH OTHER HOLDERS (THE "OTHER HOLDERS")
OF THE COMPANY'S 3.75% CONVERTIBLE SENIOR NOTES DUE 2009 PURSUANT TO WHICH ALL
OR ANY PORTION OF SUCH NOTES ARE EXCHANGED, REPURCHASED, RETIRED OR OTHERWISE
REFINANCED BY THE COMPANY; AND (III) IT HAS COMPLIED WITH THAT CERTAIN
CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 27, 2008, BY AND BETWEEN DEUTSCHE
BANK AND THE HOLDER (THE "CONFIDENTIALITY AGREEMENT").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE HOLDER
The Holder hereby makes the following representations and warranties, each of
which is true and correct on the date hereof and on the Closing Date (as though
made on such date) and shall survive the Closing and the transactions
contemplated hereby to the extent set forth herein:
3
SECTION 2.1
EXISTENCE AND POWER.
(A)
THE HOLDER IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION AND HAS THE
POWER, AUTHORITY AND CAPACITY TO EXECUTE AND DELIVER THIS AGREEMENT, TO PERFORM
ITS OBLIGATIONS HEREUNDER, AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY.
(B)
THE EXECUTION OF THIS AGREEMENT BY THE HOLDER AND THE CONSUMMATION
BY THE HOLDER OF THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT AND WILL NOT
CONSTITUTE OR RESULT IN A BREACH, VIOLATION, CONFLICT OR DEFAULT UNDER ANY NOTE,
BOND, MORTGAGE, DEED, INDENTURE, LIEN, INSTRUMENT,