Common use of Treatment of Certain Indebtedness Clause in Contracts

Treatment of Certain Indebtedness. (a) The Company shall use reasonable best efforts to commence, as soon as reasonably practicable after the receipt of a written request from Parent to do so subsequent to the date of this Agreement (and only upon receipt of such written request), at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (a “Change of Control Offer”); provided, that (A) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents in connection with such Change of Control Offer (collectively, the “Change of Control Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, and, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, in connection with any Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer on the occurrence of the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offer; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably interfere with the operations of the Company and its Subsidiaries, or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with any Change of Control Offer.

Treatment of Certain Indebtedness. (a) The Company shall use commercially reasonable best efforts to cause the Operating Subsidiary to commence, as soon as reasonably practicable after the receipt of a written request from Parent to do so subsequent to the date of this Agreement Agreement, (i) a consent solicitation with respect to any and only upon receipt all of such written request)the Operating Subsidiary’s outstanding 8.5% Senior Notes due 2019 (the “Notes”) on substantially the terms and conditions of the draft Consent Solicitation Statement provided by Parent to the Company on December 8, at Parent’s expense2013 (the “Consent Solicitation”) and (ii) if the requisite consents are not received in the Consent Solicitation, an offer to purchase and/or prepay any and all of its 5.00% Senior the Notes due 2021 (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (for a “Change of Control Offer” as defined in the Note Indenture (the “Change of Control Offer”, and together with the Consent Solicitation, collectively, the “Debt Offers”); provided, that (A) the Company shall not be required to commence any Change of Control Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, consent solicitation statement, letter of transmittal, supplemental indenture or other related documents in connection with such Change of Control Debt Offer (collectively, the “Change of Control Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Change Debt Offer (it being understood and agreed that Parent has provided the Company the necessary documents related to the Consent Solicitation a reasonable period of Control Offertime in advance of the date hereof), (B) Parent will consult with the Company regarding the timing and commencement of the Debt Offers and any Change of Control Offer tender or consent deadlines for the Debt Offers in light of the regular financial reporting schedule of the CompanyOperating Subsidiary, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company Law and the requirements of the Indenture, and, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Note Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve review the material terms and conditions of the Change Debt Offers (it being understood and agreed that the Company has had a reasonable opportunity to review the terms and conditions of Control Offer, with such approval not the Consent Solicitation prior to be unreasonably withheld, conditioned or delayed by the Companydate of this Agreement), (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty 60 days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, occur and (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, or seek any waiver or consent from any holder of Indebtedness or agent or representative thereof, in connection with any the Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer on the occurrence . The closing of the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be expressly conditioned on the occurrence of the “Change of Control” (as defined in the Note Indenture) pursuant to this Agreement at the Closing. Each Debt Offer shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offerthe Debt Offers; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably disrupt or interfere with the business or operations of the Company and or any of its SubsidiariesSubsidiaries or the conduct thereof, or (zy) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture Note Indenture, in each case, required in connection with any Change of Control Offerthe Consent Solicitation.

Treatment of Certain Indebtedness. (a) The Company shall use reasonable best efforts to commence, as As soon as reasonably practicable after the receipt by the Company of a any written request from by Parent to do so subsequent to the date of this Agreement so, but in no event later than five (and only upon 5) Business Days following receipt of such written requestrequest (provided that Parent has provided the documentation contemplated by Section 6.18(b)), at the Company shall use its commercially reasonable efforts to take the following actions on such terms and conditions that are consistent with the requirements of the Notes Indenture and the Notes and otherwise reasonably specified, from time to time, by Parent’s expense, : (i) make an offer to purchase and/or prepay any and with respect to all of its 5.00% Senior the outstanding aggregate principal amount of the Notes due 2021 (the “2021 NotesDebt Offer”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by ) and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (ii) commence a related consent solicitation (the “IndentureConsent Solicitation”) on or (if required) after to amend the Notes Indenture to remove the negative covenants and default provisions therefrom that are required to be removed to effect the Merger. On the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (a “Change of Control Offer”); providedDate, that (A) the Company shall accept for purchase (with funds to be advanced or contributed by Parent) each Note validly tendered and not withdrawn pursuant to the Debt Offer, subject to the satisfaction or waiver of all conditions to the Debt Offer. Upon Parent’s written request, the Company shall withdraw and terminate, amend or extend, or cause to be withdrawn and terminated, amended or extended, any Debt Offer and Consent Solicitation. For the avoidance of doubt, it is understood and agreed that the price to be paid in connection with the Debt Offer, conditionality, ability to terminate, amend or extend the Debt Offer, and the form and substance of the amendments to the Notes and the Notes Indenture to take effect on the Closing Date, and the decision by Parent to terminate or extend the Debt Offer, shall be within Parent’s sole discretion. None of the Notes shall be required to commence any Change of Control Offer until be repurchased prior to the Closing Date. To the extent Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents in connection with such Change of Control Offer (collectively, the “Change of Control Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known does not deliver to the Company a written request pursuant to the first sentence of this Section 6.18(a) (and has not itself commenced the Debt Offer and the requirements of Consent Solicitation), or withdraws such request after it is given, or the Indenture, and, in each case, allow the Company to alter the Change of Control Debt Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall will not be required to commence any Change of Control Offer consummated because a condition thereto will not be satisfied or waived on or prior to the date that is sixty days Closing, then at least three (3) Business Days prior to the first date on which Closing Date, the Company and Parent reasonably expect shall determine the Closing may occur, amount (Ethe “Indenture Discharge Amount”) the Company that will not be required to pay, purchase or otherwise retire any Indebtedness prior be irrevocably deposited in trust with the Indenture Trustee to effect the occurrence discharge of the Effective TimeNotes Indenture and the Notes pursuant to Section 11.01 of the Notes Indenture, assuming the mailing of the Notice of Redemption on the Closing Date (the “Optional Redemption”, and together with the transactions described in connection with any Change of Control Offerclauses (i) and (ii) above, the “Notes Refinancing”). Notwithstanding the foregoing, (Fx) the Company may, to the extent allowable under the Indenture, condition the Change closing of Control Offer any Notes Refinancing shall be conditioned on the occurrence of the Closing and funded (Gincluding all reasonable and documented out-of-pocket expenses related thereto) in no event by amounts provided, advanced or contribution by Parent or Acquisition Sub, and (y) the Company and its subsidiaries shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall not be required to be accepted for purchase take any action in violation of Legal Requirements or purchased prior to the Closing DateNotes Indenture or the Notes in connection with the Notes Refinancing. The Company shall, and shall cause its Subsidiaries Representatives and advisors to, and shall use their respective commercially reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change the Notes Refinancing, including entering into, upon the closing of Control Offer; providedthe Consent Solicitation (or on such earlier date as may be provided in the Debt Offer and Consent Solicitation materials) and receipt of the requisite consents of noteholders, howeverone or more supplemental indentures (to be effective upon the execution thereof, that nothing herein shall (x) be deemed an admission that Parent or with the operative provisions thereof to take effect from and after the date of the initial acceptance by the Company is required by of Notes for purchase in the terms of Debt Offer) reflecting the amendments to the Notes Indenture approved in such Consent Solicitation, and using its commercially reasonable efforts to cause the Indenture Trustee, as trustee under the Notes Indenture, to make a Change of Control Offer, (y) require promptly enter into such supplemental indenture or supplemental indentures. Such cooperation shall be subject to the extent it would unreasonably interfere same limitations, restrictions and conditions set forth in Section 6.11 with the operations of the Company and its Subsidiaries, or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior respect to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with any Change of Control OfferDebt Financing cooperation.

Treatment of Certain Indebtedness. (a) The Upon the written request of Parent, the Company shall will use reasonable best efforts to commence, as soon as reasonably practicable after the receipt of a written request from Parent to do so subsequent to the date of this Agreement (and only upon receipt of such written request), at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Companyto, and U.S. Bank National Associationto cause its Subsidiaries to, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by deliver all notices and among take all other reasonable and necessary actions to cause (i) the Company, and U.S. Bank National Association, as trustee (the “Indenture”) repayment in full on or (if required) after the Closing Date on terms and conditions (or in the case of letters of credit, cash collateralization, to the extent that satisfy Parent has not entered into an alternative arrangement with the requirements of Section 1.02(hissuing bank) of the Indenture all obligations then outstanding under, (a “Change of Control Offer”); provided, that (Aii) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided release on the Company with the necessary offer to purchase, supplemental indenture or other related documents Closing Date in connection with such Change repayment of Control Offer all liens, security interests, pledges, or other encumbrances securing such obligations (collectivelyother than cash collateralization of letters of credit as described above), and (iii) the termination (to the extent provided therein and pursuant to the terms thereof) on the Closing Date (such repayments, releases, and terminations, the “Change of Control Offer DocumentsExisting Credit Facility Terminations”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, andof, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable LawCredit Agreements, including SEC rules and regulations and using commercially reasonable efforts to obtain a payoff letter in customary form from the Company’s lack of material non-public information and agent under the requirements of the Indenture, Credit Agreements; provided that (CA) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be will provide all funds required to commence any Change effect all such repayments and cash collateralization of Control Offer prior to the date that is sixty days prior to the first date on which the Company letters of credit and Parent reasonably expect the Closing may occur, (E) the Company will not be required have no obligation to pay, purchase or otherwise retire effect any Indebtedness prior to the occurrence such alternative arrangement for letters of the Effective Time, in connection with any Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer on the occurrence of the Closing credit and (GB) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offer; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably interfere with the operations of the Company and its Subsidiaries, or (zwill this Section 5.5(a) require the Company or any of its Subsidiaries to (x) cause any of the Existing Credit Facility Terminations to be effective until the Closing shall have occurred, (y) pay any fees, incur or reimburse any costs or expenses, or make any paymentpayment in connection with the Existing Credit Facility Terminations, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, ) or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture incur any liability in connection with the Existing Credit Facility Terminations that is effective prior to the occurrence of the Effective Time, or (z) cooperate to the extent it would unreasonably disrupt or interfere with the business or operations of the Company or any Change of Control Offerits Subsidiaries.

Treatment of Certain Indebtedness. (a) The Company shall use reasonable best efforts Parent, Merger Sub, or an affiliate thereof may commence one or more offers to commencepurchase, as soon as reasonably practicable after and/or consent solicitations with respect to, all or a portion of the receipt outstanding aggregate principal amount of a written request from Parent to do so subsequent to the date of this Agreement (and only upon receipt of such written request), at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.006 5/8% Senior Notes due 2021 issued by the Company (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms determined by Parent and conditions that satisfy otherwise in compliance with applicable Law and the requirements of Section 1.02(h) of the Notes Indenture (a “Change of Control Offer”); provided, that (A) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents in connection with such Change of Control Offer (collectively, the “Change of Control Debt Offer”); provided that this Agreement shall have not been terminated in accordance with Article VIII. Any documentation relating to the Debt Offer (including all amendments or supplements thereto) (the “Debt Offer Documents”) a reasonable period of time in advance of commencing and all material requested to be published or mailed to the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light holders of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, and, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, Notes in connection with any Change of Control Debt Offer shall be subject to the prior review of, and comment (which review and comment shall be made as promptly as reasonably practical) by, the Company and reasonably acceptable to the Company; provided that the price to be paid in connection with the Debt Offer, (F) conditionality, ability to terminate, amend or extend the Company mayDebt Offer, and the form and substance of the amendments to the extent allowable under Notes and the Indenture, condition the Change of Control Offer Notes Indenture to take effect on the occurrence Closing Date, and the decision by Parent to terminate or extend the Debt Offer, shall be within Parent’s sole discretion (subject to compliance with applicable Law and the Notes Indenture and the other limitations in this Section 6.18 and the last sentence of Section 8.2). The closing of the Debt Offer will be expressly conditioned on the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in all material respects in compliance with applicable Law, including SEC rules and regulations, to and the extent applicableNotes Indenture. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Effective Time. Any proposed amendments to the Notes Indenture contemplated by the Debt Offer shall revert to the form in effect prior to the effectiveness of any proposed amendments and be of no further effect if the Closing Datedoes not occur. The Company shall, and its subsidiaries shall cause its Subsidiaries use reasonable best efforts to, and shall use reasonable best efforts to cause its their respective officers, employees, consultants and its Subsidiaries’ Representatives advisors, including legal and accounting advisors, and other representatives to, provide all cooperation and assistance reasonably requested by Parent in connection with any Change of Control Offer; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably interfere with the operations of the Company and its Subsidiaries, or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with any Change of Control Debt Offer.

Treatment of Certain Indebtedness. (a) The Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to commence, as soon as reasonably practicable after the receipt of a written request from Parent Buyer to do so subsequent so, one or more offers to the date of this Agreement (purchase, and only upon receipt of such written request)related consent solicitations with respect to, at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 the outstanding aggregate principal amount of any series of notes identified in Schedule 6.10 of the Company Disclosure Letter (collectively, the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy specified by Buyer (collectively, the requirements of Section 1.02(h) of the Indenture (a “Change of Control OfferDebt Offers”); provided, that (A) the Company shall not be required to commence any Change of Control Debt Offer until Parent Buyer shall have provided the Company with the necessary offer to purchase, related letter of transmittal, supplemental indenture or and other related documents in connection with such Change of Control Debt Offer (collectively, the “Change of Control Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer); provided, (B) Parent further, that Buyer will consult with the Company regarding the timing and commencement of the Debt Offers and any Change of Control Offer early tender or early consent deadlines for the Debt Offers in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, and, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent . Buyer shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve review the material terms and conditions of the Change of Control Offer, with Debt Offers. The terms and conditions specified by Buyer for the Debt Offers shall be only such approval not terms and such conditions as are customarily included in offers to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior purchase debt securities similar to the date that is sixty days prior to the first date on which the Company Notes and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence in compliance with Applicable Law. The closing of the Effective Time, in connection with any Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer Debt Offers shall be expressly conditioned on the occurrence of the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase purchased, whether or purchased not such repurchase is at the option of the Company or at the request of Buyer, prior to the Closing Date. The Company shallshall use reasonable best efforts to, and shall cause its the Company Subsidiaries to, and shall to use reasonable best efforts to cause its their respective representatives to provide cooperation and its Subsidiaries’ Representatives assistance reasonably requested by the Buyer in connection with the Debt Offers. In addition, the Company shall, and shall cause the Company Subsidiaries to, provide all to Buyer such cooperation reasonably requested by Parent Buyer that is necessary, proper or advisable in connection with any Change other approach (an “Other Debt Transaction”) chosen by Buyer to the repayment, repurchase, redemption, amendment or other treatment of Control Offerany of the Company’s Indebtedness in connection with the Transactions; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would does not unreasonably interfere with the operations of the Company and its Subsidiaries, or (z) require the Company or Subsidiaries. To the extent reasonably practicable, Buyer shall cause its counsel to furnish any legal opinions required in connection with the Debt Offers and no opinions of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities the Company shall be required prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture Closing in connection with any Change of Control Offerherewith.

Treatment of Certain Indebtedness. (a) The Company shall use its commercially reasonable best efforts to commence, as soon as reasonably practicable after the receipt of a written request from Parent deliver to do so subsequent to the date of this Agreement (and only upon receipt of such written request), at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (a “Change of Control Offer”); provided, that (Aa) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents in connection with such Change of Control Offer (collectively, the “Change of Control Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, and, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, in connection with any Change of Control Offer, (F) the Company may, to the extent allowable agent under the Indenture, condition Hercules LSA at least seven (7) Business Days (as defined in the Change of Control Offer on the occurrence of the Closing and (GHercules LSA) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date, a written notice of prepayment of all outstanding principal and accrued but unpaid interest under the Hercules LSA, which notice shall provide that such prepayment is subject to and conditioned upon the consummation of the Offer and the Merger, and (b) Parent, at least five (5) Business Days prior to the Closing Date, a draft of (and prior to the Closing Date, an executed copy of) a customary payoff letter from the lenders under the Hercules LSA relating to the repayment in full of all obligations thereunder or secured thereby (including any prepayment or end of term premium, penalties and charges, but excluding any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of the Hercules LSA), the termination of the Hercules LSA and all commitments in connection therewith and the release of all Liens securing the obligations thereunder (the “Payoff Letter”). The Company shall, and shall cause its Subsidiaries Subsidiary to, and shall use commercially reasonable best efforts to deliver (or cause its the agent or lenders under the Hercules LSA to deliver) to Parent on or prior to the Closing, in form and its Subsidiaries’ Representatives tosubstance reasonably satisfactory to Parent, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offer; providedthe documents, however, that nothing herein shall (x) be deemed an admission that Parent or filings and notices required to evidence the Company is required by the terms termination of the Indenture to make a Change Hercules LSA and effect the release of Control Offerall Liens securing the obligations thereunder, (y) require such cooperation to including the extent it would unreasonably interfere with the operations filing of the Company UCC termination statements, terminations of control agreements, terminations of Intellectual Property security agreements and its Subsidiariesdelivery of possessory collateral, or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior which shall in each case be subject to the occurrence of the Effective Time Closing and the repayment in full of all obligations then outstanding under the Hercules LSA (except other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the extent that Parent promptly reimburses (in termination of the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary thereforHercules LSA). Without limiting At the foregoingClosing, the Company and its Subsidiaries shall, Parent shall pay or shall cause their counsel toto be paid, furnish legal opinions in customary form full and scope relating to in immediately available funds, any and all amounts outstanding and then due and payable on such date under the Company and its Subsidiaries or required by Hercules LSA in accordance with the Indenture in connection with any Change of Control OfferPayoff Letter.

Treatment of Certain Indebtedness. Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, (a) The deliver notices of prepayment and notices of termination of commitments (including any certifications or calculations to be provided therewith), as applicable, with respect to the agreements related to indebtedness set forth in Section 6.8 of the Company Disclosure Letter and (b) at Parent’s request prior to Closing, shall use reasonable best efforts to commencedeliver notices of prepayment and notices of termination of commitments (including any certifications or calculations to be provided therewith), as soon as reasonably practicable after applicable, with respect to any other agreements related to indebtedness or notes of the receipt Company or any of a written request from Parent to do so subsequent to the date of this Agreement its Company (clauses (a) and only upon receipt of such written request(b), at Parent’s expensecollectively, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 (the “2021 NotesCompany Indebtedness”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (a “Change of Control Offer”); provided, that (A) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents in connection with such Change of Control Offer (collectively, the “Change of Control Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, and, in each case, allow within the time periods required thereby and as necessary to pay in full outstanding indebtedness under the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed Indebtedness by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, in connection with any Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer on the occurrence of the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shall, and shall cause its Subsidiaries to, and shall each use their reasonable best efforts to (i) obtain and deliver to Parent prior to the Closing payoff letters in customary form from the lenders (or their applicable representative) with respect to the Company Indebtedness stating the amounts required to pay in full all indebtedness thereunder at the Closing, (ii) obtain and deliver to Parent documents in customary form acknowledging the termination of obligations and release of Liens related to the Company Indebtedness that are in the form of notes from the collateral agent with respect thereto, (iii) arrange the payoff or prepayment in full, as applicable, of all such indebtedness as of the Effective Time, the termination of the Company Indebtedness and (iv) take, or cause its to be taken, all actions, and its Subsidiaries’ Representatives todo, provide or cause to be done, and to assist and cooperate with Parent and Merger Subsidiary in doing, all cooperation things necessary in connection with the Merger and the other transactions contemplated hereby with respect to the indebtedness under the Company Indebtedness, including providing timely notice to the appropriate parties of the Merger and the transactions contemplated hereby, and, as promptly as practicable, making all filings and notifications and entering into all necessary agreements as reasonably requested by Parent in connection with any Change of Control Offer; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably interfere with the operations of the Company and its Subsidiaries, or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with any Change of Control OfferMerger Subsidiary.

Treatment of Certain Indebtedness. (a) The Company shall use commercially reasonable best efforts to cause the Operating Subsidiary to commence, as soon as reasonably practicable after the receipt of a written request from Parent to do so subsequent to the date of this Agreement Agreement, (i) a consent solicitation with respect to any and only upon receipt all of such written request)the Operating Subsidiary’s outstanding 8.5% Senior Notes due 2019 (the “ Notes ”) on substantially the terms and conditions of the draft Consent Solicitation Statement provided by Parent to the Company on December 8, at Parent’s expense2013 (the “ Consent Solicitation ”) and (ii) if the requisite consents are not received in the Consent Solicitation, an offer to purchase and/or prepay any and all of its 5.00% Senior the Notes due 2021 (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing that certain Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (for a “Change of Control Offer” as defined in the Note Indenture (the “ Change of Control Offer ”, and together with the Consent Solicitation, collectively, the “ Debt Offers ”); providedprovided , that (A) the Company shall not be required to commence any Change of Control Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, consent solicitation statement, letter of transmittal, supplemental indenture or other related documents in connection with such Change of Control Debt Offer (collectively, the “Change of Control “ Debt Offer DocumentsDocuments ”) a reasonable period of time in advance of commencing the applicable Change Debt Offer (it being understood and agreed that Parent has provided the Company the necessary documents related to the Consent Solicitation a reasonable period of Control Offertime in advance of the date hereof), (B) Parent will consult with the Company regarding the timing and commencement of the Debt Offers and any Change of Control Offer tender or consent deadlines for the Debt Offers in light of the regular financial reporting schedule of the CompanyOperating Subsidiary, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company Law and the requirements of the Indenture, and, in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Note Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve review the material terms and conditions of the Change Debt Offers (it being understood and agreed that the Company has had a reasonable opportunity to review the terms and conditions of Control Offer, with such approval not the Consent Solicitation prior to be unreasonably withheld, conditioned or delayed by the Companydate of this Agreement), (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty 60 days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, occur and (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, or seek any waiver or consent from any holder of Indebtedness or agent or representative thereof, in connection with any the Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer on the occurrence . The closing of the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be expressly conditioned on the occurrence of the “Change of Control” (as defined in the Note Indenture) pursuant to this Agreement at the Closing. Each Debt Offer shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offerthe Debt Offers; providedprovided , howeverhowever , that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably disrupt or interfere with the business or operations of the Company and or any of its SubsidiariesSubsidiaries or the conduct thereof, or (zy) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture Note Indenture, in each case, required in connection with any Change of Control Offerthe Consent Solicitation.

Treatment of Certain Indebtedness. (a) The Company Company, the Surviving Corporation and Parent shall use reasonable best efforts take all necessary action to commence, as soon as reasonably practicable after the receipt of a written request from Parent to do so subsequent execute and deliver to the date of this Agreement Trustee (and only upon receipt of such written request), at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 (the “2021 Notes”), issued pursuant to as defined in that certain First Supplemental Indenture, dated as of January 28November 18, 20112013 (the “Indenture”), by and among under which the Company’s 1.75% Convertible Senior Notes due 2018 (the “Notes”) were issued, between the Company and U.S. Bank National Association, as trustee, supplementing that certain Trustee) a supplemental indenture to the Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee (the “Indenture”) on or (if required) after the Closing Date on terms and conditions that satisfy the requirements of Section 1.02(h) of the Indenture (a “Change of Control Offer”); provided, that (A) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents in connection with such Change of Control Offer (collectively, the “Change of Control Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known form satisfactory to the Company Trustee and Parent, pursuant to the requirements terms of Sections 4.07, 9.01 and 9.02 of the Indenture, to provide, among other things, that on and after the Effective Time, each holder of the Notes shall have the right to convert such Notes into the conversion consideration determined by reference to the consideration receivable upon consummation of the Merger in respect of each Share in accordance with, and subject to, the provisions of the Indenture governing the conversions of the Notes issued thereunder (including any applicable increase in the “Conversion Rate” or decrease in the “Conversion Price” (each as defined in the Indenture) thereunder in connection with the Merger) in each case in accordance with, and subject to the Indenture (including without limitation the time periods specified therein). The Company shall otherwise comply with all the other terms of the Indenture. In addition, without limiting the generality of the foregoing, the Company or the Surviving Corporation, as applicable, shall: (a) upon the occurrence of a “Fundamental Change” (as defined in the Indenture) make an offer to purchase the Notes and, if holders of Notes exercise their purchase rights with respect to their Notes, purchase such Notes, in each casecase pursuant to Article 3 of the Indenture; (b) convert any Notes surrendered for conversion by holders thereof, allow the Company to alter the Change of Control Offer timing to ensure upon compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements provisions of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior pursuant to the date that is sixty days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence terms of the Effective Time, in connection with any Change Article 4 of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition including, without limiting the Change of Control Offer on the occurrence generality of the Closing foregoing, after giving effect to the adjustment of the Conversion Rate (as defined in the Indenture) required by Section 4.06(a) thereof and after giving effect to the requirements of Sections 4.06(b) and 4.06(c) thereof; and (Gc) take all other actions required in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shallaccordance with, and shall cause its Subsidiaries subject to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offer; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change (including without limitation the time periods specified therein), including the giving of Control Offer, (y) require such cooperation to the extent it would unreasonably interfere any notices that may be required in connection with the operations of the Company and its Subsidiaries, Merger or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with any Change repurchases or conversions of Control Offerthe Notes occurring as a result of, or in connection with, the transactions contemplated by this Agreement constituting a “Fundamental Change” and/or a “Make-Whole Fundamental Change” (each, as defined in the Indenture), and delivery of any legal opinions, officer’s certificates or other documents or instruments required in connection with the consummation of the Merger, pursuant to the terms of the Indenture. The Company shall provide Parent, the Purchaser and their Representatives reasonable opportunity to review and comment on any written notice or communication to or with holders of the Notes or with the Trustee under the Indenture prior to the dispatch or making thereof, and the Company shall give reasonable and good faith consideration to any comments made by Parent, the Purchaser or their Representatives; provided that, prior to the Effective Time, the Company shall not make any settlement election pursuant to the terms of the Indenture relating to the Notes without the prior written consent of Parent.

Treatment of Certain Indebtedness. (a) The Company Company, the Surviving Corporation and Parent shall use reasonable best efforts take all necessary action to commence, as soon as reasonably practicable after the receipt of a written request from Parent to do so subsequent execute and deliver to the date of this Agreement Trustee (and only upon receipt of such written request), at Parent’s expense, an offer to purchase and/or prepay any and all of its 5.00% Senior Notes due 2021 (the “2021 Notes”), issued pursuant to that certain First Supplemental Indenture, dated as of January 28, 2011, by and among the Company, and U.S. Bank National Association, as trustee, supplementing defined in that certain Indenture, dated as of January 2814, 2011, by and among the Company, and U.S. Bank National Association, as trustee 2015 (the “Indenture”), under which the Company’s 1.375% Convertible Senior Notes due 2020 (the “Notes”) were issued, between the Company and Xxxxx Fargo Bank, National Association, as Trustee) a supplemental indenture to the Indenture, in form satisfactory to the Trustee and Parent, pursuant to the terms of Section 14.07 of the Indenture, to provide, among other things, that on or (if required) and after the Closing Date Effective Time, each holder of the Notes shall have the right to convert such Notes into the conversion consideration determined by reference to the consideration receivable upon consummation of the Merger in respect of each share of Company Common Stock in accordance with, and subject to, the provisions of the Indenture (including any applicable increase in the “Conversion Rate” or decrease in the “Conversion Price” (each as defined in the Indenture) thereunder in connection with the Merger) in each case in accordance with, and subject to the Indenture (including without limitation the time periods specified therein), as a result of the execution and delivery of this Agreement, the Merger and the other transactions contemplated by this Agreement. Prior to the Effective Time, the Company shall otherwise comply with all the other terms of the Indenture. The Company shall provide Parent and its Representatives reasonable opportunity to review and comment on terms any written notice or communication to or with holders of the Notes or with the Trustee under the Indenture at least one (1) Business Day prior to the dispatch or making thereof, and conditions that satisfy the requirements Company shall give reasonable and Table of Contents good faith consideration to any comments made by Parent or its Representatives. Without the written consent of Parent, the Company will not make any change to the method of settlement for the Notes currently provided as the default settlement method in Section 1.02(h14.02(a)(iii) of the Indenture (a “Change of Control Offer”); providedi.e., that Combination Settlement (A) the Company shall not be required to commence any Change of Control Offer until Parent shall have provided the Company with the necessary offer to purchase, supplemental indenture or other related documents as defined in connection with such Change of Control Offer (collectively, the “Change of Control Offer Documents”) a reasonable period of time in advance of commencing the applicable Change of Control Offer, (B) Parent will consult with the Company regarding the timing and commencement of any Change of Control Offer in light of the regular financial reporting schedule of the Company, the requirements of applicable Law, including SEC rules and regulations, any material non-public information known to the Company and the requirements of the Indenture, and, ) with a Specified Dollar Amount (as defined in each case, allow the Company to alter the Change of Control Offer timing to ensure compliance with applicable Law, including SEC rules and regulations and the Company’s lack of material non-public information and the requirements of the Indenture, (C) Parent shall consult with the Company and afford the Company a reasonable opportunity to review, comment and approve the material terms and conditions of the Change of Control Offer, with such approval not to be unreasonably withheld, conditioned or delayed by the Company, (D) the Company shall not be required to commence any Change of Control Offer prior to the date that is sixty days prior to the first date on which the Company and Parent reasonably expect the Closing may occur, (E) the Company will not be required to pay, purchase or otherwise retire any Indebtedness prior to the occurrence of the Effective Time, in connection with any Change of Control Offer, (F) the Company may, to the extent allowable under the Indenture, condition the Change of Control Offer on the occurrence of the Closing and (G) in no event shall the Company, any of its Subsidiaries or any of their respective officers, directors or other Representatives, have any obligation to authorize, adopt or execute any supplemental indenture or other agreement that would become effective prior to the Closing. Each Change of Control Offer, if any, shall be conducted in compliance with applicable Law, including SEC rules and regulations, to the extent applicable. None of the 2021 Notes shall be required to be accepted for purchase or purchased prior to the Closing Date. The Company shall, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause its and its Subsidiaries’ Representatives to, provide all cooperation reasonably requested by Parent in connection with any Change of Control Offer; provided, however, that nothing herein shall (x) be deemed an admission that Parent or the Company is required by the terms of the Indenture to make a Change of Control Offer, (y) require such cooperation to the extent it would unreasonably interfere with the operations of the Company and its Subsidiaries, or (z) require the Company or any of its Subsidiaries to pay any fees, incur or reimburse any costs or expenses, or make any payment, incur any other Liability or give any indemnities prior to the occurrence of the Effective Time (except to the extent that Parent promptly reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company or such Subsidiary therefor$1,000 per Note). Without limiting the foregoing, the Company and its Subsidiaries shall, or shall cause their counsel to, furnish legal opinions in customary form and scope relating to the Company and its Subsidiaries or required by the Indenture in connection with any Change of Control Offer.