YORK MELLON, AS
TRUSTEE (THE "TRUSTEE"), AS SUPPLEMENTED BY THE SECOND SUPPLEMENTAL INDENTURE,
TO BE DATED AS OF THE CLOSING DATE (THE
4
"SECOND SUPPLEMENTAL INDENTURE" AND TOGETHER WITH THE BASE INDENTURE, THE
"INDENTURE") BETWEEN THE COMPANY AND THE TRUSTEE, UNDER WHICH SUCH NOTES ARE TO
BE ISSUED.
THE BASE INDENTURE WILL BE SUBSTANTIALLY IN THE FORM INCORPORATED BY
REFERENCE AS AN EXHIBIT TO THE REGISTRATION STATEMENT; THE INDENTURE HAS BEEN
DULY AUTHORIZED AND DULY QUALIFIED UNDER THE TRUST INDENTURE ACT AND, WHEN
EXECUTED AND DELIVERED BY THE COMPANY AND THE TRUSTEE, WILL CONSTITUTE A VALID
AND LEGALLY BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE AGAINST THE COMPANY
IN ACCORDANCE WITH ITS TERMS, EXCEPT AS MAY BE LIMITED BY BANKRUPTCY,
INSOLVENCY, REORGANIZATION OR OTHER LAWS AFFECTING CREDITORS' RIGHTS GENERALLY
AND BY GENERAL EQUITABLE PRINCIPLES; AND THE SECURITIES AND THE INDENTURE WILL
CONFORM TO THE DESCRIPTIONS THEREOF IN THE PROSPECTUS.
(B)
UPON THEIR ISSUANCE IN ACCORDANCE WITH THE TERMS OF THE NOTES, THE
SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF THE NOTES WILL BE DULY
AUTHORIZED, VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK
FREE OF ALL PREEMPTIVE OR SIMILAR RIGHTS.
(C)
THE COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (FILE
NO. 333-154976) (THE "REGISTRATION STATEMENT"), INCLUDING THE BASE PROSPECTUS
RELATING TO CERTAIN DEBT AND EQUITY SECURITIES TO BE OFFERED FROM TIME TO TIME
BY THE COMPANY: (I) WAS PREPARED BY THE COMPANY IN CONFORMITY WITH THE
REQUIREMENTS OF THE SECURITIES ACT AND (II) AUTOMATICALLY BECAME EFFECTIVE UPON
THE FILING THEREOF WITH THE SEC.
THE SEC HAS NOT ISSUED A STOP ORDER SUSPENDING
THE EFFECTIVENESS OF THE REGISTRATION STATEMENT.
THE COMPANY HAS AT ALL TIMES
RELEVANT TO THE OFFERING OF THE NOTES CONTEMPLATED HEREBY COMPLIED WITH THE
CONDITIONS FOR THE USE OF FORM S-3 AND IS ELIGIBLE TO USE FORM S-3.
COPIES OF
THE REGISTRATION STATEMENT, INCLUDING ANY AMENDMENTS THERETO AND THE PROSPECTUS
CONTAINED THEREIN HAVE HERETOFORE BEEN DELIVERED BY THE COMPANY TO THE
INVESTORS.
THE REGISTRATION STATEMENT IS EFFECTIVE UNDER THE SECURITIES ACT AND
NO POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN FILED AS OF
THE DATE OF THIS AGREEMENT.
THE COMPANY HAS PREPARED AND DELIVERED TO THE
INVESTORS AND WILL FILE WITH THE SEC PURSUANT TO RULE 424(B), NO LATER THAN TWO
BUSINESS DAYS AFTER THE DATE HEREOF, A SUPPLEMENT TO THE BASE PROSPECTUS
INCLUDED IN THE REGISTRATION STATEMENT RELATING TO THE SECURITIES AND THE
OFFERING THEREOF IN CONFORMITY WITH THE REQUIREMENTS OF THE SECURITIES ACT.
3.6.
Absence of Certain Changes.
Since June 30, 2009, there has not
been any Material Adverse Effect.
3.7.
Disclosure Documents.
The information contained or incorporated
by reference in the Disclosure Documents was true and correct in all material
respects as of the respective dates of the filing thereof with the SEC (or if
amended prior to the date hereof, as of the date of such amendment); and, as of
such respective dates, the Disclosure Documents did not contain an untrue
statement of a material fact or omit to state a