Common use of Company Notes Clause in Contracts

Company Notes. (a) The Company shall, and following the Closing, Parent shall cause the Surviving Company to, comply with the terms of the Indenture, dated as of June 8, 2007, between the Company and The Bank of New York Trust Company, N.A. (the “3.00% Indenture”), with respect to any right of holders (such holders, the “3.00% Holders”) of the 3.00% Convertible Senior Notes issued thereunder, which arise as a result of the transactions contemplated hereby, including the delivery of any and all appropriate notices required by the terms of the 3.00% Indenture and the satisfaction of any conversion obligation thereunder. (b) Parent acknowledges that the consummation of the Offer and the Closing shall each constitute a “Fundamental Change” (as defined in the 3.00% Indenture), which shall entitle the 3.00% Holders to cause the Company to purchase the 3.00% Convertible Senior Notes upon the terms and subject to the conditions of the 3.00% Indenture (the “Repurchase Right”). In the event that any 3.00% Holder exercises its Repurchase Right (i) as a result of the consummation of the Offer, at the request of the Company, Parent shall contribute or, at Parent’s election, loan (on commercially reasonable terms) all funds necessary for the Company to pay any amounts owing to such 3.00% Holder as a result of the exercise of such Repurchase Right or (ii) as a result of the Closing, Parent shall cause the Surviving Company to pay any amounts owing to such 3.00% Holder as a result of the exercise of such Repurchase Right, in each case, in accordance with the terms of the 3.00% Indenture. In the event that that Parent contributes any funds to the Company pursuant to clause (i) of the immediately preceding sentence (other than pursuant to a loan), the Company shall issue to Parent in exchange for such contribution, a number of Shares equal to the (I) the amount so contributed divided by (II) the Offer Price.

Company Notes. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1, at the sole election of Parent, either Parent or the Company shall commence promptly, but in any event no later than the fifth Business Day, following the date that the Proxy Statement is first mailed to the Company’s shareholders as contemplated by Section 6.1(a) hereof or on any other date determined by Parent and consented to by the Company (which consent shall not be unreasonably withheld or delayed), offers to purchase, and related consent solicitations to eliminate or modify certain covenants and provisions in the applicable Indenture (as defined below) relating to, all of the outstanding aggregate principal amount of the Company’s 8-3/8% Senior Subordinated Notes due 2012 (the “2012 Notes”) and 8-1/4% Senior Notes Due 2008 (the “2008 Notes”, and together with the 2012 Notes, the “Notes”) on the terms and conditions set forth in one or more offers to purchase, letters of transmittal and other related documents (collectively, the “Debt Offer Documents”), each in form and substance determined by Parent and reasonably satisfactory to the Company (the “Debt Offers”). The parties agree that, and the Debt Offer Documents shall reflect that, consummation of the Debt Offers shall be conditioned on (i) receipt of valid and unrevoked consents from holders of a majority in aggregate principal amount of each series of outstanding Notes (the “Consent Condition”), (ii) the execution and delivery of the supplemental indentures referred to in Section 6.10(b) by the applicable trustee, (iii) the consummation of the Merger and (iv) the satisfaction of other customary conditions to be set forth in the Debt Offer Documents. The Company shall(i) shall waive any of the conditions to the Debt Offers (other than that the Merger shall have been consummated) and make any change to the terms and conditions (other than that the Merger shall have been consummated) of the Debt Offers as may be reasonably requested by Parent and (ii) shall not, without the prior written consent of Parent, waive any condition to the Debt Offers or make any changes to the terms and conditions of the Debt Offers. Notwithstanding the immediately preceding sentence, and subject to the terms and conditions set forth in the Debt Offer Documents, the Company shall not be required to amend the terms and conditions of the Debt Offers pursuant to instructions from Parent if such amendment would decrease the price per applicable Note payable in the Debt Offers or increase the Consent Condition. Parent shall provide draft Debt Offer Documents to the Company promptly, but in any event no later than five Business Days, after the date the preliminary proxy statement contemplated by Section 6.1(a)(ii) is first filed with the SEC. (b) The Company covenants and agrees that, promptly following the Closingconsent payment deadline described in the Debt Offer Documents, Parent assuming the requisite consents are received, it shall and shall cause the Surviving Company toSubsidiaries (as applicable) and shall use reasonable commercial efforts to cause the applicable trustee to execute (i) a supplemental indenture to the Indenture, comply with dated as of May 5, 2003 (the terms of “2003 Indenture”), among the Company, the Note Guarantors party thereto and The Bank Of New York, as trustee, relating to the 2008 Notes, and (ii) a supplemental indenture to the Indenture, dated as of June 817, 20072002 (together with the 2003 Indenture, between the Company “Indentures”), among the Company, the Note Guarantors party thereto and The Bank of New York Trust CompanyYork, N.A. (as trustee, relating to the “3.00% Indenture”)2012 Notes, with respect to any right of holders (such holderswhich supplemental indentures shall implement the proposed amendments set forth in the Debt Offer Documents and shall become operative substantially concurrently with, but prior to, the “3.00% Holders”) of the 3.00% Convertible Senior Notes issued thereunderEffective Time, which arise as a result of the transactions contemplated hereby, including the delivery of any and all appropriate notices required by the terms of the 3.00% Indenture and the satisfaction of any conversion obligation thereunder. (b) Parent acknowledges that the consummation of the Offer and the Closing shall each constitute a “Fundamental Change” (as defined in the 3.00% Indenture), which shall entitle the 3.00% Holders subject to cause the Company to purchase the 3.00% Convertible Senior Notes upon the terms and subject conditions of this Agreement (including the conditions to the conditions Debt Offers). Subject to satisfaction or waiver of the 3.00% Indenture conditions to the Debt Offers set forth in the Debt Offer Documents (including, without limitation, the “Repurchase Right”Consent Condition). In , substantially concurrently with, but not until after, the event that any 3.00% Holder exercises its Repurchase Right (i) as a result of the consummation of the Offer, at the request of the Company, Parent shall contribute or, at Parent’s election, loan (on commercially reasonable terms) all funds necessary for the Company to pay any amounts owing to such 3.00% Holder as a result of the exercise of such Repurchase Right or (ii) as a result of the ClosingEffective Time, Parent shall cause the Surviving Corporation to accept for payment and, as promptly as practicable thereafter, Parent shall provide the Company with all funds necessary to pay any amounts owing for the Notes that have been properly tendered and not withdrawn pursuant to such 3.00% Holder as a result of the exercise of such Repurchase Right, in each case, Debt Offers and in accordance with the terms Debt Offer Documents. (c) All mailings to the holders of the 3.00% IndentureNotes in connection with the Debt Offers shall be provided by Parent, subject to prior review and comment by the Company, and no Debt Offer Document shall be mailed or otherwise distributed to holders of the Notes without the written consent of Parent, such consent not to be unreasonably withheld or delayed. The Company agrees to fully cooperate and provide all information reasonably requested by Parent for inclusion in the Debt Offer Documents. If at any time prior to the completion of the Debt Offers any information in or concerning the Debt Offer Documents is discovered by the Company or Parent, which information should be included in an amendment or supplement to the Debt Offer Documents to prevent the Debt Offer Documents from containing any untrue statement of a material fact or from omitting to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated to the holders of the Notes. (d) The parties agree that customary tender offer premiums shall be offered in connection with the Debt Offers. In addition, whether or not the event that that Debt Offers are completed, Parent contributes agrees to be responsible for fees and expenses of any funds dealer manager, information agent, depositary or other agent retained in connection with the Debt Offers, each of whom shall be selected by Parent (with the consent of the Company not to be unreasonably withheld or delayed), pursuant to customary arrangements and agreements between the Company and such agents, each in form and substance reasonably satisfactory to Parent and the Company. (e) Notwithstanding anything to the Company pursuant to clause (i) of the immediately preceding sentence (other than pursuant to a loan)contrary in this Section 6.10, the Company shall issue comply, and shall cause the Company Subsidiaries to Parent in exchange for such contributioncomply, a number with the requirements of Shares equal Rule 14e-1 under the Exchange Act, and the rules and regulations promulgated thereunder, and any other Law to the extent such Law is applicable in connection with the Debt Offers. To the extent that the provisions of any applicable Law conflict with this Section 6.10, the Company shall comply with such applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance. Notwithstanding anything to the contrary set forth herein, Parent’s and Merger Sub’s obligations to consummate the Merger are not subject to or conditioned on the consummation of the Debt Offers or the satisfaction of the conditions thereof (I) including the amount so contributed divided by (II) the Offer PriceConsent Condition).