Common use of Tender Offer Clause in Contracts

Tender Offer. (a) The Borrower will use its best efforts to consummate the Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Section.

Tender Offer. (a) The Borrower Provided that this Agreement shall not have ------------ been terminated in accordance with Article VIII hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within five business days of the date hereof, Merger Sub will use its best efforts commence the Offer for 13,933,000 Shares at a price of $11.50 per Share, net to consummate the Tender seller in cash, subject to the conditions set forth in Annex A hereto. Subject to the conditions of the Offer with respect set forth in Annex A hereto, Merger Sub will promptly accept for payment and pay for all Shares that are validly tendered and not withdrawn as soon as practicable after the later of 9:00 a.m. e.s.t. on February 17, 1998 and the twentieth business day of the Offer. Merger Sub shall not, without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company), decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought, change the conditions to the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares or extend the Offer if all of the Holding Company Convertible Notes tendered thereunder no later than November 5conditions to the Offer are satisfied or waived or waive the condition set forth in paragraph (f) of Annex A to this Agreement. So long as this Agreement is in effect and the conditions to the Offer have not been satisfied or waived, 2009 (or such later date to which at the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent request of the completion Company from time to time, Merger Sub shall extend the Offer for a period not to exceed 10 business days after the previously scheduled expiration date of the Tender Offer; provided, however, in no event shall Parent be obligated to extend the Offer Transactions)-------- ------- beyond March 31, 1998. (b) As Parent agrees that the Offer to Purchase and related Letter of Transmittal relating to the Offer (which together constitute the "Offer ----- Documents") shall, in all material respects, comply with the requirements of the Fourth Restatement Effective Date--------- Securities Exchange Act of 1934, as amended (the Borrower "Exchange Act") and the rules ------------ and regulations thereunder and other applicable laws. The Company and its counsel shall deposit be given an opportunity to review and comment on the Initial Second Priority Proceeds (less the portion thereof Offer Documents prior to be used, together their being filed with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionSEC.

Tender Offer. (a) The Borrower As promptly as reasonably practicable after the date hereof, but in no event later than five business days after the public announcement of the execution of this Agreement, Purchaser or Merger Sub will use its best efforts to consummate commence the Tender Offer with respect to for all of the Holding Company Convertible Notes outstanding Shares at a price of not less than $15.50 per Share in cash, net to the seller, subject to the conditions set forth in Exhibit A, and, subject only to the terms and conditions of the Offer, will pay, as promptly as reasonably practicable after expiration of the Offer, for all Shares duly tendered thereunder and not withdrawn. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that no later than November 5, 2009 (or such later date to which the Tender Offer change may be extended by made which decreases the Borrower price per Share payable ------- in good faiththe Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer other than those set forth in Exhibit A hereto or which extends the Offer (except as set forth in the following sentence). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date (andthe initial scheduled expiration date being 20 business days following the commencement of the Offer) if, upon at the consummation thereofscheduled expiration date of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Borrower Shares, shall promptly notify in writing not be satisfied or waived, (ii) extend the Administrative Agent Offer for any period required by any rule, regulation or interpretation of the completion SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if as of such date, all of the Tender conditions to Purchaser's obligations to accept for payment, and to pay for, the Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer Transactions)is less than 90 percent, of the outstanding Shares on a fully diluted basis. (b) As The Company hereby consents to the Offer and represents that the Board of Directors of the Fourth Restatement Effective Date, Company has unanimously determined that the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof Offer is fair to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Shares and the Merger is in the best interests of the Company 3.00% Convertible Notes on May 15and the stockholders of the Company, 2010 and/or approved the making of the Offer and resolved to recommend acceptance of the Offer by the holders of the Holding Company 4.875% Convertible Notes on January 15Shares and approval of the Merger by the Company's stockholders. The Company's Board of Directors shall recommend, 2011 (but excluding any other put rights thereunder)in accordance with the provisions of Section 6.1(b) hereof, to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y"Schedule 14D-9") to prepay be filed with the Tranche B Term Loans and (if any) SEC as soon as practicable on the Incremental Loans in day the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral AccountOffer is commenced. Purchaser agrees, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer to Purchase and related Letter of Transmittal (which together constitute the "Offer Documents") and the Company agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Exchange Act and other applicable laws. The Company and its counsel, as to the Offer Documents, and the Purchaser and its counsel, as to the Schedule 14D- 9, shall be given an opportunity to review such documents prior to their being filed with the SEC. Neither Purchaser nor the Company shall file any of such funds documents with the SEC without the approval of the other party (which shall not be unreasonably withheld). (c) In connection with the Offer, the Company will cause the transfer agent for the Company Common Stock to furnish promptly to Merger Sub a list, as of a recent date, of the record holders of shares and that their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such use is permitted under this Sectionadditional information (including, without limitation, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) The Borrower will use its best efforts to consummate No later than ten Business Days following the Tender Offer with respect date of this Agreement, the Company shall commence (within the meaning of Rule 14d-2 under the Exchange Act) an issuer tender offer to all stockholders to repurchase no less than 5,314,009 shares of Common Stock at a price of $10.35 per share in cash (the “Tender Offer”) (it being understood that the Company shall not be in breach of the Holding Company Convertible Notes foregoing in the event less than 5,314,009 shares of Common Stock are tendered thereunder no later than November 5, 2009 (or and accepted in such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion Offer). The expiration of the Tender Offer Transactionsshall be no later than February 28, 2017 (the “Tender Offer Expiration Date”), after which the Company shall not extend the Tender Offer. The obligations of the Company to accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Tender Offer shall be subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the following conditions: (i) the Company has obtained all governmental, regulatory or NASDAQ consents and approvals necessary in order to consummate and effect the Tender Offer; (ii) no governmental authority of competent jurisdiction has enacted, issued or entered any restraining order, injunction or similar order or legal restraint that enjoins or otherwise prohibits the Tender Offer (a “Government Restraint”); and (iii) no legal action shall have been instituted or pending by an governmental authority of competent jurisdiction that challenges or otherwise relates to the Tender Offer (a “Government Action”). In no event shall the Company, without the prior written consent of the Stockholders, (A) reduce the number of shares of Common Stock subject to the Tender Offer; (B) reduce the price per share in the Tender Offer or change the form of consideration payable pursuant to the Tender Offer; or (C) amend or supplement any term of the Tender Offer in a manner adverse to the Stockholders. (b) As of Promptly following the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation commencement of the Tender Offer, the Stockholders shall tender or cause to be tendered all of the shares (Aand other than following a termination of this Agreement, shall not withdraw such tender) to repurchase, redeem, defease, retire of Common Stock that they own beneficially or acquire for value or pay of record in the principal Tender Offer. To the extent of any of proration in the remaining Holding Company Convertible Notes or (B) Tender Offer, the Stockholders agree to make payment of cash dividends or distributions allocate to the Holding Company in an amount sufficient to enable Tender Offer their shares purchased at the Holding Company to repurchase, redeem, defease, retire, acquire for value lowest prices. (c) The Xxxxx Family shall not tender any shares of Common Stock that they own beneficially or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held record in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionTender Offer.

Tender Offer. (a) As promptly as practicable, but in no event later than five Business Days after the satisfaction of the conditions set forth in thisSection 5.7, any of which may be waived by the party(ies) for which benefit they are provided (the “Pre-Closing” and the date upon which the Pre-Closing actually occurs shall be referred to herein as the “Pre-Closing Date”), the Investors shall commence a “regular tender offer”(within the meaning of the Tender Offer Regulations), to the shareholders of the Company, for the purchase of up to 1,550,000 Company Shares, at a price equal to the Price Per Share (the “Tender Offer”). All actions at the Pre-Closing and all transactions occurring at the Pre-Closing shall be deemed to take place simultaneously and no action shall be deemed to have been taken, no transactions shall be deemed to have been completed and no document delivered until all such actions, transactions and documents have been taken, completed and all required documents delivered. (i) The Shareholders Resolutions have been adopted by the Required Company Shareholder Vote in accordance with applicable Legal Requirement and the Charter Documents. In addition, the Investors shall have received duly executed minutes of the Company General Meeting so evidencing the Shareholders Resolutions so adopted; (a) The Borrower representations and warranties of the Company in this Agreement that are qualified by a “Material Adverse Effect” or other materiality qualification shall have been true and correct in all respects as so qualified on and as of such date with the same effect as if made at and as of such date, (b) the representations and warranties of the Company in this Agreement that are not qualified by a “Material Adverse Effect” or other materiality qualification shall have been true and correct in all material respects on and as of such date with the same effect as if made at and as of such date, provided, however, that, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (a), or (b), as applicable) only as of such date or period, and (c) the Company shall have performed and complied in all material respects with all covenants and obligations under this Agreement required to be performed and complied with by the Company at or prior to such date. In addition, the Investors shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company certifying as to satisfaction of the conditions set forth in Section 5.7(i), (ii) and (iv); (a) The representations and warranties of the Investors that are qualified by a “Material Adverse Effect” or other materiality qualification shall have been true and correct in all respects as so qualified on and as of such date with the same effect as if made at and as of such date, (b) the representations and warranties of the Investors in this Agreement that are not qualified by a “Material Adverse Effect” or other materiality qualification shall have been true and correct in all material respects on and as of such date with the same effect as if made at and as of such date, provided, however, that, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (a), or (b), as applicable) only as of such date or period, and (c) the Investors shall have performed and complied in all material respects with all covenants and obligations under this Agreement required to be performed and complied with by such parties at or prior to such date. In addition, the Company shall have received a certificate signed by an executive officer of the Investors certifying as to the satisfaction of the conditions set forth in this Section 5.7(iii); (iv) There shall not have occurred a Material Adverse Effect; (v) All other conditions set forth in Sections 6.1, 6.2 and 6.3 hereof are satisfied or waived (to the extent permitted hereunder), as if the Closing would have occurred on such date, provided that (a) the deliverable set forth in Sections 2.4(a) (purchase price) shall be deposited with and held in escrow by the Escrow Agent in accordance with the Escrow Agreement and released therefrom at the Closing, as full satisfaction of the Purchasers’ obligation thereunder; (b) with respect to the deliverables set forth in 2.4(b) (registration rights agreement), 2.4(c) (management agreement), 2.4(d) (OCS undertaking), 2.5(b) (transfer agent instructions, with the number of Purchased Shares left blank), 2.5(c) (warrants), 2.5(e) (registration rights agreement), 2.5(f) (management agreement), 2.5(g) (indemnification letter), 2.5(h) (resignations) and 2.5(k) (NASDAQ listing notice, with the number of Purchased Shares left blank), such deliverables would be dated blank and held in escrow by the Escrow Agent and released therefrom at the Closing; (c) the deliverable set forth in Sections 2.5(d) (legal opinion which shall bedated as of the Pre-Closing) 2.5(i) (consents) and 2.5(j) (TASE listing approval) (assuming, in the case of Sections 2.5(i) and 2.5(j), that no Tender Offer Shares are purchased) are dated as of (or prior to) such date, as applicable, and (d) the deliverable set forth in Section 2.5(a) (officer’s certificate) and Sections 2.5(d) (legal opinion which shall bedated as of the Closing) will use its best efforts be delivered only at the Closing; (vi) A consent to consummate certain customary exemptions from the Tender Offer with respect Regulations has been obtained from the Israeli Securities Authority, as coordinated between the Investors and the Company; and (vii) The Founders SPAs and the Shareholders Agreement shall be in full force and effect, shall not have been terminated, revoked or amended without the Investors’ consent and all actions required to all be taken or satisfied at the Pre-Closing of the Holding Company Convertible Notes tendered thereunder no later than November 5Founders SPAs in order to effect it simultaneously with the Pre-Closing hereunder shall have been duly taken, 2009 satisfied or waived in accordance with their respective terms (or such later date except if, pursuant to which the Tender Offer terms of the Founders SPAs, Closing hereunder may be extended by effected without effecting the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer TransactionsClosing thereunder). (b) As required by Section 2.2, the Investors shall deposit with the Tender Offer Agent, who shall serve as the agent required pursuant to the Tender Offer Regulations, immediately prior to the launch of the Fourth Restatement Effective Tender Offer, by wire transfer of immediately available funds to an account designated by the Escrow Agent, the Maximum Tender Offer Purchase Price. (c) The Investors shall irrevocably instruct the Tender Offer Agent to release and transfer to the Company on the Closing Date, by wire transfer of immediately available funds to an account designated by the Company in writing prior to the Closing Date, the Borrower balance, if any, between the Maximum Tender Offer Purchase Price and the Actual Tender Offer Purchase Price (the “Remaining Tender Offer Fund”). If the Closing occurs, such Remaining Tender Offer Fund shall deposit be deemed for all intent and purposes as paid by the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds Investors on account of the Tranche B Term Loans Actual Investment Purchase Price. (d) The Company shall cooperate (and shall cause their respective counsel, auditors, agents and representatives to cooperate) in the Tranche B-1 Term Loanspreparation of any documents, rulings, applications, exemptions, or other instruments related to make or required in order to initiate and consummate the payments provided for in Section 5.01(f)Tender Offer, as may be reasonably requested by the Investors. (e) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long The parties acknowledge that there can be no assurance as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer or the amount of Tender Offer Purchased Shares, if any, that would be purchased thereby, and (ii) if any Holding that subject to the terms and conditions set forth in this Agreement, the Company Convertible Notes remain outstanding after consummation of may be required to issue and sell to the Investors, and the Investors shall be required to purchase from the Company, Purchased Shares assuming no Company Shares are purchased pursuant to the Tender Offer, . (Af) The Tender Offer shall not be subject to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any conditions other put rights thereunder)than, to the extent that any such holders do not exercise such put rights permitted by the ISA, the conditions to Closing under Section 6.1 and 6.2 hereunder or the termination of this Agreement pursuant to Section 7.1. (g) The Investors shall not extend the terms thereofTender Offer without the Company’s consent, within 120 days after the expiration of such put rightswhich shall not be unreasonably withheld or delayed. (h) The Investors shall (and shall cause their respective counsels and representatives to) respond as promptly as reasonably practicable to, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (orand comply with, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower comments from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower SEC and its staff with respect to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionTender Offer documents.

Tender Offer. (a) The Borrower will use its best efforts Subject to consummate the provisions of this ------------ Agreement, as promptly as practicable, the Company shall commence the Tender Offer, which shall be an issuer tender offer to purchase a number of shares, up to 450,000 shares, of Common Stock to be determined by the Company (the "Offer with respect ----- Number") at a price per share not in excess of a per share price, and not less ------ than a per share price, determined by the Company (the price range from such maximum to all minimum price being referred to herein as the "Per Share Price --------------- Range"), net to the seller in cash. Pursuant to the Tender Offer, the Company ----- will determine the single per share price, within the Per Share Price Range, net to the seller in cash (such price being referred to as the "Per Share Purchase ------------------ Price"), that it will pay for shares properly tendered pursuant to the Tender ----- Offer, taking into account the number of shares so tendered and the Holding prices specified by the tendering stockholders. The Company Convertible Notes tendered thereunder no later than November 5, 2009 will select the lowest Per Share Purchase Price that will allow it to buy the Offer Number of shares of Common Stock (or such later date to which lesser number of shares as are properly tendered and not withdrawn at prices within the Tender Offer may be extended by the Borrower in good faithPer Share Price Range) (andsuch number of shares being the "Purchased Number"). All shares of Common Stock properly tendered at ---------------- prices at or below the Per Share Purchase Price and not withdrawn will be purchased at the Per Share Purchase Price, upon subject to the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion terms and conditions of the Tender Offer Transactions)Offer. (b) As of On the Fourth Restatement Effective Datedate required under applicable rules, the Borrower Company shall deposit file with the Initial Second Priority Proceeds Securities and Exchange Commission (less the portion thereof "Commission") an Issuer Tender ---------- Offer Statement on Schedule 13E-4 (together with all amendments and supplements thereto, the "Tender Offer Statement") with respect to the Tender Offer. The ---------------------- Tender Offer Statement shall contain the Offer to Purchase and such other information and exhibits as are required by law. The Tender Offer Statement will not include an untrue statement of a material fact or omit to state a material fact required to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, stated therein or necessary to make the payments provided for statements therein, in Section 5.01(f)) directly into light of the Initial Second Priority Debt Proceeds Collateral Account; provided thatcircumstances under which they were made, at not misleading. The Company agrees promptly to correct any time after information in the Fourth Restatement Effective Date, so long as no Default Tender Offer Statement that shall be or shall have occurred become false or misleading in any material respect and the Company further agrees to take all steps necessary to cause the Tender Offer Statement as so corrected to be continuingfiled with the Commission and disseminated to the stockholders of the Company as and to the extent required by applicable federal securities laws. (c) Subject to the terms and conditions thereof, the funds Tender Offer shall expire at midnight Eastern time on the date that is 20 business days from the Initial Second Priority Debt Proceeds Collateral Account shall be available date the Tender Offer is first published, sent or given to be withdrawn at holders of Common Stock; provided, however, that the request of Company may extend the Borrower to the Administrative Agent solely (but for no other purpose) Tender Offer (i) to purchase if, at the Holding Company Convertible Notes pursuant previously scheduled expiration date of the Tender Offer, any of the conditions to the consummation Company's obligations to accept for payment, and pay for, shares of Common Stock shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, (ii) for any period required by any rule, regulation, interpretation or position of the Commission or the staff thereof applicable to the Tender Offer and (iii) for any reason on one or more occasions for an aggregate period of not more than 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) if any Holding Company Convertible Notes remain outstanding after consummation of this sentence. (d) The obligation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchaseaccept for payment, redeemand pay for, defease, retire, acquire for value or pay the principal shares of any such Holding Company Convertible Notes (provided that such payments are applied directly Common Stock properly tendered and not withdrawn prior to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights Tender Offer shall be subject to the satisfaction or waiver at or prior to the expiration of the holders Tender Offer of such conditions as the Company, in its discretion (except as set forth below), shall have specified in the Offer to Purchase to be distributed in connection with the Tender Offer. Notwithstanding the foregoing, the Tender Offer shall not be subject to a condition that any minimum number of shares of Common Stock be tendered, but shall be subject to the following conditions: (i) that there shall not have occurred or been threatened any change in the condition (financial or otherwise), business, operations, properties, assets, liabilities, income or prospects of the Holding Company 3.00% Convertible Notes on May 15and its subsidiaries, 2010 and/or taken as a whole, which is or may be material and adverse to the holders Company and its subsidiaries, taken as a whole (a "Material Adverse Change") and (ii) Cape Xxx Investors shall not have, prior to ----------------------- the expiration date, terminated its obligations under Section 2.2 of the Holding Agreement by and between the Company 4.875% Convertible Notes on January 15and Cape Xxx Investors dated as of October 14, 2011 1997 (but excluding any other put rights thereunderthe "Cape Xxx Agreement"), to the extent that any such holders do not exercise such put rights pursuant to in accordance with the terms thereof, within 120 days after the expiration as a ------------------ result of such put rights, the Borrower shall apply the portion a Material Adverse Change. (e) The Stockholder will not tender any shares of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds Common Stock beneficially owned by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower Stockholder to the Administrative Agent certifying as Company pursuant to the use of such funds and that such use is permitted under this SectionTender Offer.

Tender Offer. Provided that this Agreement shall not have been terminated in accordance with ARTICLE X, Parent shall cause Purchaser to (ai) The Borrower will commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) as promptly as practicable (and, in any event, no later than December 8, 2006) after the date of this Agreement, an offer to purchase all outstanding Company Shares at the Offer Price, (ii) within the same time period specified in subclause (i) and after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO and all other necessary documents with the Securities and Exchange Commission (the “SEC”), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act, in each case in connection with the Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”) and (iii) use its best reasonable efforts to consummate the Offer, subject to the terms and conditions thereof. Provided that this Agreement shall not have been terminated in accordance with ARTICLE X, the obligation of Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex I hereto (the “Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 Conditions”). As used in this Agreement (or such later date to which including the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereofConditions), the Borrower shall promptly notify term “Minimum Condition” means the condition that the Company Shares validly tendered in writing accordance with the Administrative Agent terms of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be usedand not withdrawn, together with the proceeds any Company Shares then owned by Parent and/or Purchaser, constitute a majority of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) Adjusted Outstanding Shares. “Adjusted Outstanding Shares” means (i) the number of Company Shares outstanding immediately prior to purchase the Holding acceptance of Company Convertible Notes Shares for payment pursuant to the consummation Offer, without giving effect to any Company Shares owned by the Company, plus, at the election of the Tender Offer and Parent, (ii) if any Holding an additional number of Company Convertible Notes remain outstanding after consummation Shares determined by Parent in its sole discretion up to but not exceeding the aggregate number of Company Shares issuable upon the Tender Offerexercise of (x) all Company Options, (Ay) rights to repurchase, redeem, defease, retire or acquire for value or pay Company Shares under the principal of any of Company ESPP based upon amounts accumulated under the remaining Holding Company Convertible Notes or ESPP and not withdrawn by participants thereof and (Bz) other rights to make payment of cash dividends or distributions acquire Company Shares that are outstanding immediately prior to the Holding acceptance of Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire Shares for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionOffer.

Tender Offer. (a) The Borrower will use its best efforts to consummate Provided that (w) the Tender Offer with respect to all Initial Purchase shall have been closed, (x) none of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which the Tender Offer may be extended by the Borrower events set forth in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default Annex I hereto shall have occurred and be continuing, (y) the funds from average closing price of the Initial Second Priority Debt Proceeds Collateral Account Common Stock for the fifteen trading days following the public announcement of this Agreement is less than or equal to $2.42 per share (the "Offer Price"), and (z) no other competing offer to purchase the Company or the Shares (as hereinafter defined) is made at any price (the conditions in w, x, y and z above being referred to as the "Offer Conditions"), then on or before July 31, 2000, or as soon as practicable thereafter (but in no event later than August 7, 2000), Buyer shall commence under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act")) a tender offer (the "Offer") to purchase all of the outstanding shares of Common Stock other than the Seller Shares (the "Shares") at the Offer Price per Share, net to the seller in cash, which Offer shall be available to be withdrawn at on the request terms set forth herein. Neither Buyer's commencement of the Borrower Offer nor the agreement by any holder of Shares to tender such Shares pursuant to the Administrative Agent solely Offer shall be a condition precedent to the Closing of the purchase of the Seller Shares. Buyer shall, subject only to the satisfaction or waiver of the conditions set forth in Annex I hereto (but the "Offer Conditions"), accept for no other purposepayment, and pay for, all Shares validly tendered pursuant to the Offer (and not withdrawn) as soon as practicable after such acceptance and payment is legally permitted. Payment for any Shares accepted for payment shall be made within two business days after acceptance thereof by delivering the purchase price for such Shares to the depositary to whom such Shares have been tendered. Buyer shall have the right to change the terms and conditions of the Offer, so long as such changes do not, without the prior written approval of the Company, (i) decrease the Offer price or the number of Shares sought, (ii) amend the Offer to purchase modify or add any conditions, (iii) change the Holding Company Convertible Notes pursuant form of consideration payable in the Offer or (iv) otherwise amend the Offer in any manner adverse to the consummation holders of Shares other than to extend the Offer as permitted hereunder. The Offer shall expire on the date designated by the Buyer that is within three business days after the earliest time permitted by the Exchange Act, unless the Offer is extended by Buyer as permitted herein (the date of expiration, as the same may be extended, is herein referred to as the "Expiration Date"). Buyer may, from time to time, without the consent of the Tender Company, extend the Expiration Date (i) if any of the Offer and Conditions has not been satisfied, for the minimum period of time deemed appropriate by Buyer to satisfy such condition, but in no event later than the 20th business day following the initial Expiration Date (subject, with respect to the Minimum Condition (as defined in Annex I hereto), to the provisions of clause (ii) hereof); (ii) if any Holding Company Convertible Notes remain outstanding after consummation all of the Offer Conditions have been satisfied other than the Minimum Condition, for a period of not more than 10 business days following the initial Expiration Date, in order to allow the Minimum Condition to be satisfied; and (iii) to provide for a subsequent offering period in accordance with Rule 14d- 11 under the Exchange Act. It is agreed that the conditions set forth in Annex I, other than the Minimum Condition, are for the sole benefit of Buyer, and may be asserted by it regardless of the circumstances giving rise to such condition or may be waived by Buyer, in whole or in part at any time and from time to time. (b) As soon as practicable on the date the Offer is commenced, Buyer shall file with the Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer, which Schedule TO will contain (Aeither as exhibits or incorporated by reference) the form of offer to repurchasepurchase the Shares (the "Offer to Purchase") and related Letter of Transmittal (the "Letter of Transmittal"). Buyer and the Company agree to promptly correct the Schedule TO, redeemthe Offer to Purchase and related Letter of Transmittal, defease, retire or acquire for value or pay and all amendments thereto (which together constitute the principal of "Offer Documents") if any information provided by any of them for use in the remaining Holding Company Convertible Notes Offer Documents shall have become false or (B) misleading in any respect, and Buyer shall take all steps necessary to make payment of cash dividends or distributions cause the Schedule TO as so corrected to be filed with the Holding Company in an amount sufficient Commission and the other Offer Documents as so corrected to enable the Holding Company be disseminated to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15Shares, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), in each case as and to the extent that any such holders do not exercise such put rights pursuant required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review the Offer Documents prior to the terms thereof, within 120 days after filing thereof with the expiration of such put rights, Commission. Buyer agrees to provide the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy Company with any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing written comments Buyer or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower its counsel may receive from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower Commission with respect to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionOffer Documents promptly after receipt thereof.

Tender Offer. (a) Provided that this Agreement shall not have ------------ been terminated in accordance with Article IV hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within seven business days of the date hereof, Purchaser will commence a tender offer (the "Offer") for 22,250,327 shares of common stock, no par value, of the Company ----- (the "Shares"), at a price of $51.00 per Share in cash, net to the seller, ------ subject to the conditions set forth in Annex A hereto. Subject to the terms and conditions of the Offer, Purchaser will promptly accept for payment and pay for all Shares validly tendered and not withdrawn that it is obligated to purchase thereunder. The Borrower will use Company's Board of Directors shall recommend acceptance of the Offer to its best efforts shareholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to consummate be filed with the Securities and Exchange -------------- Commission (the "SEC") upon commencement of the Offer; provided, however, that --- -------- ------- if the Company's Board of Directors determines in good faith, after consultation with its outside counsel, that it is necessary to amend or withdraw its recommendation in order for its directors to comply with their respective fiduciary duties, such amendment or withdrawal shall not constitute a breach of this Agreement. The initial expiration date of the Offer shall be the date twenty business days from and including the date (the "Commencement Date") the Offer Documents (as defined ----------------- in Section 1.1(c) below) are first filed with the Securities and Exchange Commission. Purchaser expressly reserves the right, in its sole discretion, to waive, set forth or change any term and condition of the Offer; provided, that, -------- unless previously approved by the Company in writing, no provision may be set forth or changed which: (i) increases or, except as set forth in the next succeeding sentence, decreases the Tender Offer with respect Condition (as defined in Annex A hereto); (ii) decreases the price per Share to all be paid in the Offer; (iii) changes the form of consideration payable in the Offer (other than by adding consideration); (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto; or (v) amends or modifies any term or condition of the Holding Company Convertible Notes Offer in a manner adverse to the holders of Shares. Without the prior written consent of the Company, Purchaser shall not extend the expiration date of the Offer beyond the initial expiration date of the Offer; provided, that, if on the -------- ---- initially scheduled expiration date of the Offer (or any subsequent expiration date) any of the conditions to the Offer have not been satisfied, Purchaser may in its sole discretion extend from time to time the Offer for up to and including an additional twenty (20) business days in the aggregate after the initial expiration date of the Offer, and may in its sole discretion, in connection with any such extension, amend the terms of the Offer, but only to reduce the Tender Offer Condition to any number of Shares greater than 20,300,320 Shares (the "Reduced Tender Offer Condition"); it being understood that if Purchaser shall accept for payment any Shares validly tendered thereunder no later than November 5and not withdrawn pursuant to the Offer, 2009 it shall accept for payment all such Shares up to the Tender Offer Condition. The Offer shall further provide that Shares (including Shares issued pursuant to any of the Company's employee or director benefit plans (including the Stock Plans)) may be tendered utilizing a notice of guaranteed delivery, which shall require delivery of the Shares to the depository within three business days (or such later date to which the Tender Offer longer period as may be extended permitted under applicable law and agreed to by Purchase and the Borrower in good faithCompany) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions)following acceptance for payment by Purchaser. (b) As The Company hereby represents, warrants and agrees (as applicable) that: (i) the Board of Directors of the Fourth Restatement Effective DateCompany at a meeting duly called and held on May 21, 2000, has unanimously (A) determined that this Agreement and the transactions contemplated hereby are in the best interests of the holders of Shares, (B) approved and adopted this Agreement and the transactions contemplated hereby and (C) resolved to recommend in the Schedule 14D-9 that the holders of Shares accept the Offer and tender their Shares to Purchaser thereunder; (ii) the Board of Directors of the Company has taken all action necessary to render Section 14A:10A-4 of the New Jersey Business Corporation Act ("NJBCA") inapplicable to the Offer; (iii) the Schedule 14D-9 as ----- initially filed with the SEC will set forth the information contained in this Section 1.1(b)(i) and (ii); and (iv) UBS Warburg LLC (the "Financial Advisor") ----------------- has delivered to the Board of Directors of the Company its oral opinion (which opinion shall be confirmed in writing) to the effect that, as of the date of this Agreement, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof $51.00 per Share in cash to be usedreceived in the Offer (or pursuant to the Shareholder Agreements (as defined in Section 2.1)) by holders of Shares (other than Purchaser and its affiliates) is fair, together from a financial point of view, to such holders. The Company has been authorized by the Financial Advisor to permit the inclusion of a copy of such opinion (and a reference thereto in form and substance satisfactory to the Financial Advisor) in the Schedule 14D-9. Subject to the terms and conditions of this Agreement, the Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Board of Directors of the Company described herein. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder in order to fulfill its obligations under the Governance Agreement, dated as of the date hereof, between the Company and Purchaser (the "Governance ---------- Agreement"), relating to appointment of Purchaser's designees to the Company's --------- Board of Directors and shall provide for inclusion in Purchaser's Schedule TO to be filed with the proceeds SEC contemporaneously with the commencement of the Tranche B Term Loans Offer such information with respect to the Company and its officers and directors as is required under such Section and Rule in order to fulfil its obligations thereunder. (c) Purchaser agrees, as to the Offer to Purchase and related Letter of Transmittal (which together constitute the "Offer Documents") and the Tranche B-1 Term LoansCompany --------------- agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply as to form with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations ------------ thereunder and other applicable laws. Purchaser represents and warrants to the Company as to the Offer Documents, and the Company represents and warrants to Purchaser as to the Schedule 14D-9, that on the date filed with the SEC and on the date first published, sent or given to the Company's shareholders, the Offer Documents and the Schedule 14D-9, as applicable, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the payments provided for statements therein, in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request light of the Borrower to the Administrative Agent solely (but for no other purpose) circumstances under which they were made, not misleading, except that (i) Purchaser makes no representation with respect to purchase information supplied by the Holding Company Convertible Notes pursuant to for inclusion in the consummation of the Tender Offer Documents, and (ii) if any Holding the Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) makes no representation with respect to repurchase, redeem, defease, retire or acquire information supplied by Purchaser for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held inclusion in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (orSchedule 14D-9. The Company and its counsel, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer Documents (or any amendment thereto) and Purchaser and its counsel, as to the Schedule 14D-9 (or any amendment thereto), shall be given a reasonable opportunity to review such documents prior to their being filed with the SEC. (d) In connection with the Offer, the Company will instruct its Transfer Agent to furnish promptly to Purchaser a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Purchaser with such funds additional information (including, but not limited to, updated lists of holders of Shares and that their addresses, mailing labels and lists of security positions) and such use is permitted under this Sectionother customary assistance as Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article 8, then, not later than the first business day after execution of this Agreement, the Company shall issue a public announcement of the execution of this Agreement. At the time of and following such public announcement, both parties shall fully cooperate with each other as necessary to allow the Purchaser to file such communications with the Commission under cover of Schedule TO as are required to be filed pursuant to Rule 14d-2(b) under the Exchange Act. Not later than the twentieth business day prior to the Shareholders Meeting, the Purchaser shall, subject to the provisions of this Agreement, commence the Tender Offer for up to 8,250,000 shares together with the associated rights ("Rights") issued pursuant to the Rights Agreement dated as of February 25, 1999 (the "Rights Agreement"), between the Company and American Securities Transfer & Trust, Inc., as Rights Agent (collectively, the "Tender Shares") at a price of $4.00 per Tender Share, net to the seller in cash. The Borrower Purchaser shall keep the Tender Offer open until the earlier of the date on which the Company Shareholders' Meeting is held and September 1, 2000 (the "Approval Date"). The Purchaser shall accept for payment and pay for all Tender Shares that have been validly tendered and not withdrawn pursuant to the Tender Offer promptly following the Shareholder Approval, subject to satisfaction, or waiver by the Purchaser, of the conditions set forth in this Agreement and in Annex I to this Agreement. The obligation of the Purchaser to accept for payment, purchase and pay for Tender Shares tendered pursuant to the offer shall be subject to the conditions set forth herein and in the Offer Documents, including the condition that a minimum of 500,000 Tender Shares shall have been validly tendered and not withdrawn prior to the expiration date of the Tender Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any shares owned by the Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Tender Offer. The Purchaser expressly reserves the right to increase the price per share payable in the Tender Offer or to make any other changes in the terms and conditions of the Tender Offer; provided, however, that, unless previously approved by the Company in writing, no change may be made which decreases the price per share payable in the Offer, which changes the form of consideration to be paid in the Tender Offer, which imposes conditions to the Tender Offer in addition to those set forth herein, which broadens the scope of such conditions, which increases the minimum number of Tender Shares which must be tendered as a condition to the acceptance for payment and payment for Tender Shares in the Tender Offer, or which otherwise amends the terms of the Tender Offer in a manner that is materially adverse to holders of shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, extend the Tender Offer if, by the Approval Date, any of the conditions to the Purchaser's obligation to purchase Tender Shares shall not be satisfied until such time as such conditions are satisfied. However, if the Company shall have held the Shareholders Meeting (with a quorum duly present) and a majority of the shareholders present and voting did not vote to approve the Transactions by the Approval Date, the Purchaser shall not extend the Tender Offer. It is agreed that the conditions to the Tender Offer set forth herein and in the Annex I to this Agreement are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants or agreements under this Agreement) or may be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be made in good faith and shall be final and binding on the parties. The Purchaser may, but is not obligated to, purchase Tender Shares in the Tender Offer if the Minimum Condition is not satisfied. However, only consummation of the Tender Offer for a number of Tender Shares which satisfies the Minimum Condition (a "Successful Tender Offer") shall result in the exchange of Exchangeable Notes for Convertible Notes and the cancellation of any outstanding Warrants. (b) The Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the offer at such time as will permit the Tender Offer to be commenced as contemplated by Section 7.2(a). The Tender Offer Statement shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule TO and the documents therein pursuant to which the offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the holders of shares of Common Stock, shall not contain any untrue statement of a material fact or omit 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, except that no representation is made by the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of the Purchaser and the Company further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to shareholders of the Company, in each case as and to the extent required by applicable Federal securities laws. The Purchaser agrees to provide the Company and its counsel in writing with any comments the Purchaser or its counsel may receive from the SEC or its Staff with respect to the Offer Documents promptly after the receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the shareholders of the Company. (c) The Company hereby approves of and consents to the Tender Offer and represents and warrants that the Board of Directors of the Company, at a meeting duly called and held, has unanimously adopted resolutions (i) determining that this Agreement and the Transactions, are fair to, and in the best interests of, the shareholders of the Company, (ii) approving and adopting this Agreement and the Transactions, in all respects and that such approval constitutes approval of the Initial Investment, the Tender Offer, this Agreement, and the terms of the Exchangeable Notes, Warrants and Convertible Notes and (iii) recommending that the shareholders of the Company accept the Tender Offer, tender their shares of Common Stock thereunder to the Purchaser and approve the Transactions at the Shareholders Meeting; provided, however, that such recommendation may be withdrawn, modified or amended to the extent that the Board of Directors, by a majority vote, determines in its good faith judgment, based as to legal matters on the advice of legal counsel, that the Board has received a Superior Proposal and is required to withdraw, modify or amend its recommendation to properly discharge its fiduciary duties. (d) The Company shall use its best efforts to consummate file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") on the date the Offer Documents are filed with the SEC, and in any event shall file with the SEC the Schedule 14D-9 not later than the date required pursuant to the Exchange Act and the applicable rules and regulations promulgated thereunder, containing the recommendation described in Section 7.2(c) and shall mail the Schedule 14D-9 to the shareholders of the Company. The Schedule 14D-9 shall comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder on the date filed with the SEC and on the date first published, sent or given to the Company's shareholders, and shall not contain any untrue statement of a material fact or omit 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 were made, not misleading, except that no representation is made by the Company with respect to all information supplied in writing by the Purchaser specifically for inclusion or incorporation by reference in the Schedule 14D-9. Each of the Holding Company Convertible Notes tendered thereunder no later than November 5and the Purchaser agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, 2009 and the Company further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's Shareholders, in each case as and to the extent required by applicable Federal securities laws. The Purchaser and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 and all amendments and supplements thereto prior to their filing with the SEC or dissemination to shareholders of the Company. (e) In connection with the Tender Offer, the Company will, and will cause its transfer agent to, furnish promptly to the Purchaser mailing labels containing the names and addresses of all record holders of shares of Common Stock as of a recent date and of those persons becoming record holders after such date, together with copies of all lists of shareholders and security position listing and computer files and all other information in the Company's possession and control regarding the beneficial ownership of its shares of Common Stock. The Company shall promptly furnish the Purchaser with such additional information (including, but not limited to, updated lists of shareholders and their addresses, mailing labels and security position listings and computer files) and such other assistance as the Purchaser or such later date to which its agents may reasonably request in communicating the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant record and beneficial holders of shares. Subject to the consummation requirements of law, and except for such steps as are necessary or advisable to disseminate the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation other documents necessary to consummate the Transactions and to solicit tenders of shares and the approval of the Tender OfferTransaction, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal Purchaser and each of its Affiliates shall hold in confidence the information contained in any of such labels, lists and additional information, shall use such information only in connection with the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions Tender, and, if this Agreement shall be terminated, shall deliver to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration all copies of such put rights, the Borrower shall apply the portion of the balance held information then in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing their possession or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectiontheir control.

Tender Offer. As promptly as practicable, and in any event ten Business Days after the date hereof, Parent shall commence (aunder the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase all outstanding Ordinary Shares (the “Tender Offer”) for cash equal to their pro rata share of the aggregate amount then on deposit in the Trust Account, less Taxes and interest (the “Tender Consideration”). The Borrower Parent agrees that no Ordinary Shares held by the Parent or Merger Sub will be tendered in the Tender Offer and that it will not accept for payment any Ordinary Shares held by FWAC Holdings, which Ordinary Shares shall be purchased by the Parent in accordance with the terms of the FWAC Holdings Repurchase Agreement as provided in Section 1.3(b). Unless otherwise agreed to by the Parties, Parent shall use its best efforts (subject to consummate market conditions) to conduct the Tender Offer with respect without stockholder vote pursuant to all Rule 13e-4 and Regulation 14E of the Holding Company Convertible Notes Exchange Act (as modified, waived or otherwise agreed to with the SEC) which regulates issuer tender offers and compliance with the requirement of Article 24 of its Charter. The obligation of Parent to accept for payment Ordinary Shares validly tendered thereunder no later than November 5, 2009 (or such later date and not validly withdrawn pursuant to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available subject to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes condition (the “Maximum Tender Condition”) that no more than 825,000 Ordinary Shares (excluding such shares held by FWAC Holdings) shall have been validly tendered and not validly withdrawn pursuant to and prior to the consummation expiration of the Tender Offer and (ii) if the satisfaction of each of the other conditions set forth in Exhibit A hereto. Parent may not waive the Maximum Tender Condition or the other conditions set forth in Exhibit A (except for conditions to be satisfied by the Company) without the written consent of the Company. Unless agreed to by the Parties in writing, no material change (including changing the amount per share offered to the shareholders) may be made to the Tender Offer which imposes conditions to the Tender Offer in addition to those set forth in Exhibit A hereto or is inconsistent with this Section 6.5. The Parties hereby agree to negotiate in good faith to amend Exhibit A to reflect any Holding Company Convertible Notes remain outstanding after consummation changes that may be reasonably required as a result of discussions with the SEC or its staff. Furthermore, Parent may not waive any failure by a holder to validly tender his, her or its Ordinary Shares prior to the expiration of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay without the principal of any prior written consent of the remaining Holding Company Convertible Notes or Company. The Tender Offer shall expire on the date that is twenty (B20) to make payment Business Days following the commencement of cash dividends or distributions the Tender Offer (the “Initial Expiration Date”). Notwithstanding the foregoing, and subject to the Holding Company in an amount sufficient to enable the Holding Company to repurchaseprovision of Section 8.1, redeemif, defease, retire, acquire for value or pay the principal of at any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the scheduled expiration of the put rights Tender Offer, the conditions set forth in Exhibit A, have not been satisfied or waived, Parent may extend the Tender Offer for one or more consecutive periods beyond the scheduled expiration date (the Initial Expiration Date as extended, the “Expiration Time”). Notwithstanding the foregoing, the Parent, without the consent of the holders Company, may extend the Tender Offer for any period required by any rule, regulation or interpretation of the Holding Company 3.00% Convertible Notes on May 15SEC, 2010 and/or or the holders of the Holding Company 4.875% Convertible Notes on January 15staff thereof, 2011 (but excluding any other put rights thereunder), applicable to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionTender Offer.

Tender Offer. (a) The Borrower As promptly as reasonably practicable after the date hereof, but in no event later than five business days after the public announcement of the execution of this Agreement, Purchaser or Merger Sub will use its best efforts to consummate commence the Tender Offer with respect to for all of the Holding Company Convertible Notes outstanding Shares at a price of not less than $25.50 per Share in cash, net to the seller, subject to the conditions set forth in Exhibit A, and, subject only to the terms and conditions of the Offer, will pay, as promptly as reasonably practicable after expiration of the Offer, for all Shares duly tendered thereunder and not withdrawn. Purchaser expressly reserves the right to waive any such condition other than the Minimum Condition, to increase the price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no later than November 5, 2009 (or such later date to which the Tender Offer change may be extended by made to the Borrower Minimum -------- ------- Condition, and no change may be made which decreases the price per Share payable in good faiththe Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer other than those set forth in Exhibit A hereto or which extends the Offer (except as set forth in the following sentence). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date (andthe initial scheduled expiration date being 20 business days following the commencement of the Offer) if, upon at the consummation thereofscheduled expiration date of the Offer, any of the conditions to Purchaser's obligation to accept for payment, and to pay for, the Borrower Shares, shall promptly notify in writing not be satisfied or waived, (ii) extend the Administrative Agent Offer for any period required by any rule, regulation or interpretation of the completion SEC or the staff thereof applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if as of such date, all of the Tender conditions to Purchaser's obligations to accept for payment, and to pay for, the Shares are satisfied or waived, but (x) the number of Shares validly tendered and not withdrawn pursuant to the Offer Transactions)is less than 90 percent and (y) Purchaser reasonably believes that such extension would cause the number of validly tendered and not withdrawn shares to exceed 90 percent of the outstanding Shares. (b) As The Company hereby consents to the Offer and represents that the Board of Directors of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) Company has unanimously (i) determined that the Offer is fair to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Shares and the Merger is in the best interests of the Company 3.00% Convertible Notes on May 15and the stockholders of the Company, 2010 and/or (ii) approved the making of the Offer and the purchase of the Shares pursuant to the Offer and (iii) resolved to recommend acceptance of the Offer by the holders of the Holding Company 4.875% Convertible Notes on January 15Shares and approval of the Merger by the Company's stockholders. The Company's Board of Directors shall recommend the Transactions, 2011 (but excluding any other put rights thereunder)in accordance with the provisions of Section 6.1(a) hereof, to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y"Schedule 14D-9") to prepay be filed with the Tranche B Term Loans and (if any) SEC as soon as practicable on the Incremental Loans in day the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral AccountOffer is commenced. Purchaser agrees, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer to Purchase and related Letter of Transmittal (which together constitute the "Offer Documents") and the Company agrees, as to the Schedule 14D-9, that subject to compliance by the Purchaser with the requirements of Section 6.1(c) hereof such documents shall, in all material respects, comply with the requirements of the Exchange Act and other applicable laws. The Company and its counsel, as to the Offer Documents, and the Purchaser and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. Neither Purchaser nor the Company shall file any of such funds documents with the SEC without the approval of the other party (which shall not be unreasonably withheld). (c) In connection with the Offer, the Company will cause the transfer agent for the Company Common Stock to furnish promptly to Merger Sub a list, as of a recent date, of the record holders of shares and that their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such use is permitted under this Sectionadditional information (including, without limitation, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) The Borrower will use its best efforts to consummate the Tender Offer Unless this Agreement shall have previously been validly terminated in accordance with respect to all Section 7 or any of the Holding Company Convertible Notes tendered thereunder no later than November 5events described in paragraphs (a), 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faithb), (c) (andto the extent performance is required), upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent (d) or (e) of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default Annex I hereto shall have occurred and be continuing, as promptly as practicable, but in any event within ten days, after the funds from date of this Agreement, Acquisition Sub shall commence (within the Initial Second Priority Debt Proceeds Collateral Account shall be available meaning of Rule 14d-2 under the Exchange Act) the Offer to be withdrawn purchase all of the outstanding Company Shares at the request Offer Price (including any Restricted Company Shares). The obligations of the Borrower Acquisition Sub to the Administrative Agent solely (but accept for no other purpose) (i) to purchase the Holding payment and pay for any Company Convertible Notes Shares validly tendered pursuant to the consummation Offer (and not properly withdrawn) shall be subject to the satisfaction or waiver of only those conditions set forth in Annex I hereto (the “Offer Conditions”). The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.” (b) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding Conditions, as soon as possible after consummation the expiration of the Tender Offer (or, if Acquisition Sub elects to provide for a Subsequent Offering Period in accordance with Section 1.1(e), as soon as possible after the expiration of the “initial offering period” (as such term is used in Rule 14d-11 under the Exchange Act)). Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment all Company Shares validly tendered (and not properly withdrawn) pursuant to the Offer. As promptly as practicable after the acceptance for payment of any Company Shares tendered pursuant to the Offer, Acquisition Sub shall (Aand Parent shall cause Acquisition Sub to) pay for such Company Shares. Parent shall provide or cause to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) be provided to make payment of cash dividends or distributions to the Holding Company Acquisition Sub on a timely basis funds in an amount sufficient to enable purchase all Company Shares that Acquisition Sub becomes obligated to purchase pursuant to the Holding Offer (including in any Subsequent Offering Period), and Acquisition Sub shall maintain such funds exclusively for such purpose. (c) Acquisition Sub expressly reserves the right to waive any of the Offer Conditions without the prior written consent of the Company, subject to the following sentence. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Acquisition Sub shall (without the prior written consent of the Company): (i) change or waive the Minimum Tender Condition (as defined in Annex I); (ii) reduce the Offer Price or decrease the number of Company Shares sought to repurchasebe purchased in the Offer; (iii) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 1.1(d)); (iv) change the form of consideration payable in the Offer; (v) impose any condition to the Offer in addition to the Offer Conditions or add to the Offer Conditions; or (vi) amend, redeemmodify or supplement any of the terms of the Offer in any manner adversely affecting the holders of Company Shares. (d) Unless extended as provided in this Agreement, defeasethe Offer shall expire on the date (the “Initial Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, retireif, acquire on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any of the Offer Conditions are not satisfied or waived then Acquisition Sub shall, until such time as such conditions are satisfied or waived, extend (and re-extend) the Offer and its expiration date beyond the Initial Expiration Date or such other date for value one or pay more periods ending no later than the principal of Walk Away Date, until such Offer Conditions are satisfied or, as applicable, waived by Parent and Acquisition Sub; provided that any such Holding extension shall be in increments of not more than three business days (unless a longer period of time is agreed to by the Company Convertible Notes in writing, such agreement not to be unreasonably withheld). Any individual extension of the Offer pursuant to the preceding sentence shall not exceed 10 business days and in no event shall the Offer extend beyond the Walk Away Date without the mutual written consent of the Company and Parent. Notwithstanding the foregoing, the Offer also shall be extended for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by any other Legal Requirement. The Offer may not be terminated prior to its expiration date (provided that as such payments are applied directly expiration date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Section 7. Nothing in this paragraph shall affect any termination rights in Section 7 hereof. (e) Acquisition Sub may, in its discretion, elect to such repurchase, redemption, defeasance, retirement, acquisition provide for value a subsequent offering period (and one or payment of principal); provided further that more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (Aeach a “Subsequent Offering Period”) following the expiration Acceptance Time (as defined in Section 1.4(a)) if all of the put rights Offer Conditions have been satisfied or waived and Company Shares have been accepted for payment, but the number of Company Shares acquired by Acquisition Sub (together with other Company Shares owned of record by Parent, Acquisition Sub and their Affiliates) represent at least one share less than 90% of the holders then outstanding number of the Holding Company 3.00% Convertible Notes on May 15Shares, 2010 and/or the holders for an aggregate period of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days more than ten business days. As soon as practicable after the expiration acceptance for payment of any Company Shares validly tendered (and not properly withdrawn) in any Subsequent Offering Period, Acquisition Sub shall pay (and Parent shall cause Acquisition Sub to) for such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionCompany Shares.

Tender Offer. (a) The Borrower will use its best efforts Subject to consummate the provisions of this ------------ Agreement, as promptly as practicable, the Company shall commence the Tender Offer, which shall be an issuer tender offer to purchase a number of shares, up to 450,000 shares, of Common Stock to be determined by the Company (the "Offer with respect ----- Number") at a price per share not in excess of a per share price, and not less ------ than a per share price, determined by the Company (the price range from such maximum to all minimum price being referred to herein as the "Per Share Price --------------- Range"), net to the seller in cash. Pursuant to the Tender Offer, the Company will determine the single per share price, within the Per Share Price Range, net to the seller in cash (such price being referred to as the "Per Share Purchase ------------------ Price"), that it will pay for shares properly tendered pursuant to the Tender ----- Offer, taking into account the number of shares so tendered and the Holding prices specified by the tendering stockholders. The Company Convertible Notes tendered thereunder no later than November 5, 2009 will select the lowest Per Share Purchase Price that will allow it to buy the Offer Number of shares of Common Stock (or such later date to which lesser number of shares as are properly tendered and not withdrawn at prices within the Tender Offer may be extended by the Borrower in good faithPer Share Price Range) (andsuch number of shares being the "Purchased Number"). All shares of Common Stock properly tendered at ---------------- prices at or below the Per Share Purchase Price and not withdrawn will be purchased at the Per Share Purchase Price, upon subject to the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion terms and conditions of the Tender Offer Transactions)Offer. (b) As of On the Fourth Restatement Effective Datedate required under applicable rules, the Borrower Company shall deposit file with the Initial Second Priority Proceeds Securities and Exchange Commission (less the portion thereof "Commission") an Issuer Tender ---------- Offer Statement on Schedule 13E-4 (together with all amendments and supplements thereto, the "Tender Offer Statement") with respect to the Tender Offer. The ---------------------- Tender Offer Statement shall contain the Offer to Purchase and such other information and exhibits as are required by law. The Tender Offer Statement will not include an untrue statement of a material fact or omit to state a material fact required to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, stated therein or necessary to make the payments provided for statements therein, in Section 5.01(f)) directly into light of the Initial Second Priority Debt Proceeds Collateral Account; provided thatcircumstances under which they were made, at not misleading. The Company agrees promptly to correct any time after information in the Fourth Restatement Effective Date, so long as no Default Tender Offer Statement that shall be or shall have occurred become false or misleading in any material respect and the Company further agrees to take all steps necessary to cause the Tender Offer Statement as so corrected to be continuingfiled with the Commission and disseminated to the stockholders of the Company as and to the extent required by applicable federal securities laws. (c) Subject to the terms and conditions thereof, the funds Tender Offer shall expire at midnight Eastern time on the date that is 20 business days from the Initial Second Priority Debt Proceeds Collateral Account shall be available date the Tender Offer is first published, sent or given to be withdrawn at holders of Common Stock; provided, however, that the request of Company may extend the Borrower to the Administrative Agent solely (but for no other purpose) Tender Offer (i) to purchase if, at the Holding Company Convertible Notes pursuant previously scheduled expiration date of the Tender Offer, any of the conditions to the consummation Company's obligations to accept for payment, and pay for, shares of Common Stock shall not have been satisfied or waived, until such time as such conditions are satisfied or waived, (ii) for any period required by any rule, regulation, interpretation or position of the Commission or the staff thereof applicable to the Tender Offer and (iii) for any reason on one or more occasions for an aggregate period of not more than 5 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) if any Holding Company Convertible Notes remain outstanding after consummation of this sentence. (d) The obligation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchaseaccept for payment, redeemand pay for, defease, retire, acquire for value or pay the principal shares of any such Holding Company Convertible Notes (provided that such payments are applied directly Common Stock properly tendered and not withdrawn prior to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights Tender Offer shall be subject to the satisfaction or waiver at or prior to the expiration of the holders Tender Offer of such conditions as the Company, in its discretion (except as set forth below), shall have specified in the Offer to Purchase to be distributed in connection with the Tender Offer. Notwithstanding the foregoing, the Tender Offer shall not be subject to a condition that any minimum number of shares of Common Stock be tendered, but shall be subject to the following conditions: (i) that there shall not have occurred or been threatened any change in the condition (financial or otherwise), business, operations, properties, assets, liabilities, income or prospects of the Holding Company 3.00% Convertible Notes on May 15and its subsidiaries, 2010 and/or taken as a whole, which is or may be material and adverse to the holders Company and its subsidiaries, taken as a whole (a "Material Adverse Change") and (ii) Cape Xxx Investors shall not have, prior to ----------------------- the expiration date, terminated its obligations under Section 2.2 of the Holding Agreement by and between the Company 4.875% Convertible Notes on January 15and Cape Xxx Investors dated as of October 14, 2011 1997 (but excluding any other put rights thereunderthe "Cape Xxx Agreement"), to the extent that any such holders do not exercise such put rights pursuant to in accordance with the terms thereof, within 120 days after the expiration as a ------------------ result of such put rights, the Borrower shall apply the portion a Material Adverse Change. (e) The Stockholder will not tender any shares of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds Common Stock beneficially owned by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower Stockholder to the Administrative Agent certifying as Company pursuant to the use of such funds and that such use is permitted under this SectionTender Offer.

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within five business days of the date hereof, Purchaser will use its best efforts to consummate commence a tender offer (the Tender Offer with respect to "Offer") for all of the Holding Company Convertible Notes outstanding Shares that it currently does not directly or indirectly own at a price of $19.50 per Share in cash, net to the seller, subject to the conditions set forth in Annex A hereto. Subject to the terms and conditions of the Offer, Purchaser will promptly pay for all Shares duly tendered thereunder no later than November 5, 2009 that it is obligated to purchase thereunder. The Company's Board of Directors and a majority of the Company's Independent Directors (or as defined in Section 4.2) shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (as such later date to which the Tender Offer statement may be extended by the Borrower in good faith) (and, upon the consummation thereofamended or supplemented from time to time, the Borrower shall promptly notify in writing "Schedule 14D-9") to be filed with the Administrative Agent Securities and Exchange Commission (the "SEC") upon commencement of the completion Offer; provided, however, that if the Company's Board of Directors or the Special Committee (the "Special Committee") composed of the Tender Company's Independent Directors determines that its fiduciary duties require it to amend or withdraw its recommendation, such amendment or withdrawal shall not constitute a breach of this Agreement. Purchaser will not, without the prior written consent of the Company and the Special Committee, decrease the price per Share or change the form of 2 consideration payable in the Offer, decrease the number of Shares sought or change the conditions to the Offer. Purchaser shall not terminate or withdraw the Offer Transactions)or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer set forth on Annex A hereto shall not have been satisfied or waived. (b) As of the Fourth Restatement Effective DatePurchaser agrees, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer to Purchase and related Letter of such funds Transmittal (which together, as either of them may be amended or supplemented from time to time, constitute the "Offer Documents"), and the Company agrees, as to the Schedule 14D-9, that such use is permitted under this Sectiondocuments shall, in all material respects, comply with the requirements of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and other applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. (c) In connection with the Offer, the Company will cause its Transfer Agent to furnish promptly to Purchaser a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Purchaser with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (aSubject to satisfaction of Section 2(a) The Borrower will use below, the Fund Parties agree to conduct a tender offer by the Fund for 100% of its best efforts issued and outstanding ARPS at a price equal to consummate the Tender Offer with respect to all 87% of the Holding Company Convertible Notes tendered thereunder no later than November 5$25,000 per share liquidation preference of the ARPS (i.e., 2009 a tender offer of $21,750 per ARPS share), plus one non-transferrable contingent payment right, which represents the contractual right to receive the consideration (or if any becomes payable) described in the following paragraph, scheduled to expire as of the close of the New York Stock Exchange on February 27, 2015 (such later date to which the Tender Offer date, as it may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together accordance with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation terms of the Tender Offer, the “Expiration Date”), subject only to substantially the same conditions as are set forth in Appendix A hereto (A) to repurchasethe “Tender Offer”), redeem, defease, retire or acquire for value or pay which conditions do not include any minimum level of participation in the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the Tender Offer by ARPS holders of the Holding Company 3.00% Convertible Notes on May 15Fund. The Fund hereby agrees that if, 2010 and/or the holders as of the Holding Company 4.875% Convertible Notes on January 15Expiration Date of the Tender Offer, 2011 (but excluding any other put rights thereunder)all of such conditions are satisfied, to the extent that any such holders do not exercise such put rights it shall accept for payment all ARPS properly tendered pursuant to the terms thereofTender Offer. In addition, within 120 subject to satisfaction of Section 2(a) below, the Fund Parties agree that if the Fund completes the Tender Offer and subsequently completes an additional tender offer for its ARPS or a voluntary redemption of its ARPS pursuant to Section 11.4(a)(i) of the Fund’s Bylaws (as opposed to and not including a mandatory ARPS redemption pursuant to Section 11.4(a)(ii) of the Fund’s Bylaws) (collectively such an additional ARPS tender offer or voluntary redemption of ARPS being referred to herein as a “Voluntary Redemption”) during the period of three-hundred and sixty-five (365) calendar days after beginning with the expiration Expiration Date of the Tender Offer (such 365 calendar day period is referred to herein as the “Subsequent Year”) and such subsequent Voluntary Redemption is for a tender offer or redemption price per ARPS share that is greater than the price per ARPS share paid in the Tender Offer (the amount of such put rightsprice differential per ARPS share, the Borrower shall apply “Additional Amount”), the portion Fund will pay to Brigade and any other ARPS holder who has tendered and received payment for ARPS in the Tender Offer an additional payment equal to (i) the number of ARPS so tendered by such holder in the Tender Offer multiplied by (ii) the Additional Amount. Payment of the balance held Additional Amount per ARPS share shall be made within thirty (30) days of the event that gave rise to such payment. For purposes of this Agreement, the date upon which the Fund “completes” or “completed,” or the “completion of,” a tender offer or redemption for its ARPS means the date upon which the Fund makes payment for all validly tendered ARPS that have been accepted for payment in such tender offer or for all ARPS that have been redeemed pursuant to a redemption. For the sake of clarity, the Fund’s Tender Offer shall be deemed “completed” for purposes of this Agreement on the date upon which the Fund makes payment for all validly tendered ARPS that have been accepted for payment in the Initial Second Priority Debt Proceeds Collateral Account Tender Offer, and such Tender Offer shall not be integrated with or deemed to continue in the event that it does not require the Fund engages in a subsequent Voluntary Redemption and/or is required to satisfy any such remaining put rights (or, upon expiration make a payment of all such put rightsan Additional Amount with respect to the Tender Offer pursuant to the immediately preceding paragraph. In this regard, the entire remaining balance held therein) Subsequent Year (x) so long as no Default which shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any begin on the Expiration Date of the Other Debt and/or (yTender Offer) shall not be extended for any reason and shall not relate to prepay the Tranche B Term Loans and (if any) the Incremental Loans or recommence in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds connection with a subsequent Voluntary Redemption or other tender offer or redemption conducted by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionFund.

Tender Offer. (a) The Borrower will use Unless this Agreement shall have previously been validly terminated in accordance with Section 7, and provided that the Company has complied with its best efforts to consummate obligations under Section 1.3(e) in all material respects, as promptly as practicable, but in any event within the Tender 10 business day period commencing on the first business day after the date of this Agreement, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer with respect to for all of the Holding outstanding Company Convertible Notes Shares (including any Company Shares subject to repurchase rights in favor of the Company), at a price per Company Share equal to the Per Share Amount. (The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”) (b) Subject to any extension of the Offer pursuant to Section 1.1(d), as promptly as practicable following the earliest date as of which Acquisition Sub is permitted under applicable law to accept for payment Company Shares tendered thereunder no later than November 5pursuant to the Offer (and not validly withdrawn), 2009 Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment all Company Shares tendered pursuant to the Offer (and not validly withdrawn); provided that each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived. The obligation of Acquisition Sub to accept for payment Company Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the acceptance for payment of any Company Shares tendered pursuant to the Offer (and not validly withdrawn), Acquisition Sub shall pay for such Company Shares. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Acquisition Sub shall (without the prior written consent of the Company): (i) change or waive the Minimum Condition; (ii) decrease the number of Company Shares sought to be purchased by Acquisition Sub in the Offer; (iii) subject to Section 1.1(e), reduce the Per Share Amount to be paid pursuant to the Offer; (iv) extend or otherwise change the Expiration Time of the Offer (except to the extent permitted or required pursuant to Section 1.1(d)); (v) change the form of consideration payable in the Offer; (vi) impose any condition to the Offer in addition to the Offer Conditions; (vii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting any of the holders of Company Shares; or (viii) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL. (d) The Offer shall expire at 11:59 p.m., New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date (such initial expiration time and date of the Offer, the “Initial Expiration Time”), unless the Offer has been extended as provided in this Agreement (the Initial Expiration Time, or such later expiration time and date to which the Tender Offer has been so extended, the “Expiration Time”). Subject to the parties’ respective rights to terminate this Agreement pursuant to Section 7, the Offer may or shall, as applicable, be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions).from time to time as follows: (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase if, at the Holding Company Convertible Notes pursuant to the consummation of the Tender then-scheduled Expiration Time, any Offer Condition is not satisfied and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offerhas not been waived, then: (A) to repurchaseAcquisition Sub may extend (and re-extend) the Offer and the then-scheduled Expiration Time for one or more additional periods of not more than 10 business days each, redeemending no later than 11:59 p.m., defeaseNew York City time, retire or acquire for value or pay on the principal of any of business day immediately preceding the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder)End Date, to the extent that any permit such holders do not exercise such put rights pursuant Offer Condition to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii)satisfied; and (B) to the extent requested by the Company from time to time, Acquisition Sub shall extend (and re-extend) the Offer and the then-scheduled Expiration Time for one or more periods (the length of such periods, but in no event longer than 10 business days each, to be determined by Acquisition Sub) ending no later than 11:59 p.m., New York City time, on the business day immediately preceding the End Date, to permit such Offer Condition to be satisfied; (ii) Acquisition Sub shall extend the Offer for any period required by applicable Legal Requirements, any interpretation or position of the SEC or its staff or the rules of The Nasdaq Stock Market LLC applicable to the Offer; (iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any action in accordance with Section 8.13 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Acquisition Sub, the Expiration Time shall be extended: (A) for the period during which such action is pending; or (B) by such other time period established by the court presiding over such action, as the case may be, but, in any event, ending no later than 11:59 p.m., New York City time, on the business day immediately preceding the End Date; or (iv) if: (A) on or after the date that is the second business day prior to the date on which the then-scheduled Expiration Time will occur the full amount of the Debt Financing (or any request alternative financing in an amount sufficient, together with any cash on the balance sheet of Parent and any cash on the balance sheet of the Company, to enable the transactions contemplated by this Agreement to be consummated) is not reasonably expected to be available to be funded promptly after the Expiration Time (a “Financing Delay”) and Parent notifies the Company in writing that a Financing Delay has occurred (such notice, the “Financing Delay Notice”); (B) all of the Offer Conditions have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Expiration Time, but subject to such conditions being able to be satisfied) on the date on which Parent delivers the Financing Delay Notice to the Company; and (C) only with respect to clause “(1)” below, Parent and Acquisition Sub irrevocably acknowledge and agree in a writing delivered to the Company (which writing need only be delivered one time) that all Offer Conditions set forth in clauses “(2)(b),” “(2)(c),” “(2)(e),” (2)(g)” (except in such certificate with respect to clause “(2)(d)” of Annex I) and “(2)(h)” of Annex I shall be deemed to have been satisfied or waived at the Expiration Time, then: (1) Acquisition Sub shall have the right in its sole discretion to extend (and re-extend) the Offer and the then-scheduled Expiration Time for withdrawal one or more periods of funds up to five business days each (each such increment to end at 11:59 p.m., New York City time, on the last business day of such period) (the length of such periods, but in no event longer than five business days each, to be determined by Acquisition Sub), or such other duration as may be agreed to by Parent and the Company; and (2) to the extent requested by the Borrower Company from time to time, Acquisition Sub shall extend (and re-extend) the Initial Second Debt Priority Proceeds Collateral AccountOffer and the then-scheduled Expiration Time for one or more periods of at least five business days and no more than 10 business days each (each such increment to end at 11:59 p.m., New York City time, on the last business day of such period); provided, however, that Acquisition Sub shall not (under either clause “(1)” or “(2)” above) be permitted to extend the Offer to a time and date that is later than 11:59 p.m., New York City time, on the second business day after the End Date. The Offer may not be terminated prior to the then-scheduled Expiration Time unless this Agreement is validly terminated in accordance with Section 7. (e) If, between the date of this Agreement and the Acceptance Time, the Borrower outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Per Share Amount shall provide a certificate signed by a senior officer of the Borrower be adjusted to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionextent appropriate.

Tender Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IV hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within seven business days of the date hereof, Purchaser will commence a tender offer (the "Offer") for 22,250,327 shares of common stock, no par value, of the Company (the "Shares"), at a price of $51.00 per Share in cash, net to the seller, subject to the conditions set forth in Annex A hereto. Subject to the terms and conditions of the Offer, Purchaser will promptly accept for payment and pay for all Shares validly tendered and not withdrawn that it is obligated to purchase thereunder. The Borrower will use Company's Board of Directors shall recommend acceptance of the Offer to its best efforts shareholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to consummate be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the Offer; provided, however, that if the Company's Board of Directors determines in good faith, after consultation with its outside counsel, that it is necessary to amend or withdraw its recommendation in order for its directors to comply with their respective fiduciary duties, such amendment or withdrawal shall not constitute a breach of this Agreement. The initial expiration date of the Offer shall be the date twenty (20) business days from and including the date (the "Commencement Date") the Offer Documents (as defined in Section 1.1(c) below) are first filed with the Securities and Exchange Commission. Purchaser expressly reserves the right, in its sole discretion, to waive, set forth or change any term and condition of the Offer; provided, that, unless previously approved by the Company in writing, no provision may be set forth or changed which: (i) increases or, except as set forth in the next succeeding sentence, decreases the Tender Offer with respect Condition (as defined in Annex A hereto); (ii) decreases the price per Share to all be paid in the Offer; (iii) changes the form of consideration payable in the Offer (other than by adding consideration); (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto; or (v) amends or modifies any term or condition of the Holding Company Convertible Notes Offer in a manner adverse to the holders of Shares. Without the prior written consent of the Company, Purchaser shall not extend the expiration date of the Offer beyond the initial expiration date of the Offer; provided, that, if on the initially scheduled expiration date of the Offer (or any subsequent expiration date) any of the conditions to the Offer have not been satisfied, Purchaser may in its sole discretion extend from time to time the Offer for up to and including an additional twenty (20) business days in the aggregate after the initial expiration date of the Offer, and may in its sole discretion, in connection with any such extension, amend the terms of the Offer, but only to reduce the Tender Offer Condition to any number of Shares greater than 20,300,320 Shares (the "Reduced Tender Offer Condition"); it being understood that if Purchaser shall accept for payment any Shares validly tendered thereunder no later than November 5and not withdrawn pursuant to the Offer, 2009 it shall accept for payment all such Shares up to the Tender Offer Condition. The Offer shall further provide that Shares (including Shares issued pursuant to any of the Company's employee or director benefit plans (including the Stock Plans)) may be tendered utilizing a notice of guaranteed delivery, which shall require delivery of the Shares to the depository within three business days (or such later date to which the Tender Offer longer period as may be extended permitted under applicable law and agreed to by Purchase and the Borrower in good faithCompany) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions)following acceptance for payment by Purchaser. (b) As The Company hereby represents, warrants and agrees (as applicable) that: (i) the Board of Directors of the Fourth Restatement Effective DateCompany at a meeting duly called and held on May 21, 2000, has unanimously (A) determined that this Agreement and the transactions contemplated hereby are in the best interests of the holders of Shares, (B) approved and adopted this Agreement and the transactions contemplated hereby and (C) resolved to recommend in the Schedule 14D-9 that the holders of Shares accept the Offer and tender their Shares to Purchaser thereunder; (ii) the Board of Directors of the Company has taken all action necessary to render Section 14A:10A-4 of the New Jersey Business Corporation Act ("NJBCA") inapplicable to the Offer; (iii) the Schedule 14D-9 as initially filed with the SEC will set forth the information contained in this Section 1.1(b)(i) and (ii); and (iv) UBS Warburg LLC (the "Financial Advisor") has delivered to the Board of Directors of the Company its oral opinion (which opinion shall be confirmed in writing) to the effect that, as of the date of this Agreement, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof $51.00 per Share in cash to be usedreceived in the Offer (or pursuant to the Shareholder Agreements (as defined in Section 2.1)) by holders of Shares (other than Purchaser and its affiliates) is fair, together from a financial point of view, to such holders. The Company has been authorized by the Financial Advisor to permit the inclusion of a copy of such opinion (and a reference thereto in form and substance satisfactory to the Financial Advisor) in the Schedule 14D-9. Subject to the terms and conditions of this Agreement, the Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Board of Directors of the Company described herein. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder in order to fulfill its obligations under the Governance Agreement, dated as of the date hereof, between the Company and Purchaser (the "Governance Agreement"), relating to appointment of Purchaser's designees to the Company's Board of Directors and shall provide for inclusion in Purchaser's Schedule TO to be filed with the proceeds SEC contemporaneously with the commencement of the Tranche B Term Loans Offer such information with respect to the Company and its officers and directors as is required under such Section and Rule in order to fulfil its obligations thereunder. (c) Purchaser agrees, as to the Offer to Purchase and related Letter of Transmittal (which together constitute the "Offer Documents") and the Tranche B-1 Term LoansCompany agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply as to form with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations thereunder and other applicable laws. Purchaser represents and warrants to the Company as to the Offer Documents, and the Company represents and warrants to Purchaser as to the Schedule 14D-9, that on the date filed with the SEC and on the date first published, sent or given to the Company's shareholders, the Offer Documents and the Schedule 14D-9, as applicable, shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the payments provided for statements therein, in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request light of the Borrower to the Administrative Agent solely (but for no other purpose) circumstances under which they were made, not misleading, except that (i) Purchaser makes no representation with respect to purchase information supplied by the Holding Company Convertible Notes pursuant to for inclusion in the consummation of the Tender Offer Documents, and (ii) if any Holding the Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) makes no representation with respect to repurchase, redeem, defease, retire or acquire information supplied by Purchaser for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held inclusion in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (orSchedule 14D-9. The Company and its counsel, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer Documents (or any amendment thereto) and Purchaser and its counsel, as to the Schedule 14D-9 (or any amendment thereto), shall be given a reasonable opportunity to review such documents prior to their being filed with the SEC. (d) In connection with the Offer, the Company will instruct its Transfer Agent to furnish promptly to Purchaser a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Purchaser with such funds additional information (including, but not limited to, updated lists of holders of Shares and that their addresses, mailing labels and lists of security positions) and such use is permitted under this Sectionother customary assistance as Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) The Borrower will use its best efforts In connection with any Tender Offer, Great Hill shall not enter into any tender commitment, tender and voting support or other similar contract, arrangement, agreement or understanding with any Person in respect of the Excess Shares and, subject to consummate Great Hill's receipt of the requisite information to determine the amount of Excess Shares to be tendered (or not tendered) pursuant to this Section 3.2, shall cause the Excess Shares to be tendered (or not tendered) immediately prior to the scheduled expiration date and time of any Tender Offer, taking into account any extension thereof as announced by any Person or "group" (as such terms is used in Section 13(d) and Section 14(d) of the Exchange Act) making such Tender Offer (the "TO Expiration Date"), in such manner that is in direct proportion to the manner in which all Non-Affiliate Holders tender (or do not tender) their shares of Common Stock, it being understood and agreed that in causing the Excess Shares to be tendered (or not tendered), Great Hill shall be entitled to rely on the most current information that it has received from the Company in accordance with respect to all its obligations in Section 3.2(b) as of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which close of business on the Tender Offer may be extended by Business Day preceding the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions)TO Expiration Date. (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans From and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long tenth Business Day following the "commencement" (as no Default shall have occurred and be continuing, such term is used in Rule 14d-2 under the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request Exchange Act) of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay during the principal pendency of such Tender Offer the Company shall keep Great Hill informed of the status of any Tender Offer (including the number and percentage of the remaining Holding Company Convertible Notes or (B) to make payment then-outstanding shares of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchaseCommon Stock theretofore validly tendered, redeemphysically and by means of guaranteed delivery, defeaseand withdrawn, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) for the Incremental Loans purpose of allowing Great Hill to tender (or not tender) the Excess Shares in accordance with the order specified in Section 2.09(b)(iii)requirements of this Agreement as promptly as practicable; and (B) prior to any request for withdrawal of funds by provided, however, that the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer failure of the Borrower Company to provide Great Hill with tender and tender withdrawal updates on a daily basis shall not relieve Great Hill of its obligation to tender the Administrative Agent certifying Excess Shares as to the use of such funds and that such use is permitted under provided in this SectionSection 3.2.

Tender Offer. (a) The Borrower will use its best efforts to consummate Unless this Agreement shall have previously been validly terminated in accordance with Section 7 and provided that, none of the Tender events set forth in clause “(e)” or clause “(f)” of Annex I hereto shall have occurred, as promptly as practicable after the date hereof, but in any event within the 10 business day period commencing on the first business day after the date of this Agreement, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer with respect to for all of the Holding outstanding Company Convertible Notes tendered thereunder no later than November 5, 2009 Shares (or such later date including any Company Shares subject to which the Tender Offer may be extended by the Borrower repurchase rights in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent favor of the completion Company), at a price per Company Share equal to the Per Share Amount. (The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Tender Exchange Act, is referred to in this Agreement as the “Offer TransactionsCommencement Date.”). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time promptly as practicable after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request later of the Borrower to the Administrative Agent solely (but for no other purpose) (i) the earliest date as of which Acquisition Sub is permitted under applicable Legal Requirements to purchase the Holding accept for payment Company Convertible Notes Shares validly tendered pursuant to the consummation of the Tender Offer (and not withdrawn), and (ii) if any Holding Company Convertible Notes remain outstanding after consummation the earliest date as of which each of the Tender conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment all Company Shares validly tendered pursuant to the Offer (and not withdrawn). The obligation of Acquisition Sub to accept for payment Company Shares validly tendered and not withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the acceptance for payment of any Company Shares validly tendered and not withdrawn pursuant to the Offer, Acquisition Sub shall pay for such Company Shares. The Per Share Amount payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer shall be paid net to the holder thereof in cash, subject to reduction only for applicable U.S. federal withholding or back-up withholding Taxes. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Acquisition Sub shall (without the prior written consent of the Company): (i) change or waive the Minimum Condition (as defined in Annex I); (ii) decrease the number of Company Shares sought to be purchased by Acquisition Sub in the Offer; (iii) reduce the Per Share Amount to be paid pursuant to the Offer; (iv) extend or otherwise change the expiration date of the Offer (except to the extent permitted or required pursuant to Section 1.1(d)); (v) change the form of consideration payable in the Offer; (vi) impose any condition to the Offer in addition to the Offer Conditions; or (vii) amend, modify or supplement any of the Offer Conditions in any manner adverse to the holders of Company Shares. (d) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, unless this Agreement shall have been terminated in accordance with Section 7, (i) Acquisition Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or The Nasdaq Stock Market that is applicable to the Offer, and (ii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Acquisition Sub shall extend (and re-extend) the Offer and its expiration date beyond the Initial Expiration Date or such subsequent date for one or more additional periods of up to 10 business days each (each such extension period, an “Additional Offer Period”), to permit such Offer Condition to be satisfied; provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 1.1(d), (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of if any of the remaining Holding Company Convertible Notes events set forth in clause “(e)” or clause “(f)” of Annex I shall have occurred on or before the Initial Expiration Date or the end of any Additional Offer Period (provided that in the case of an injunction described in clause “(e)” of Annex I, such injunction shall be final and nonappealable), in no event shall Acquisition Sub be required to extend the Offer beyond the Initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the Initial Expiration Date or the end of any Additional Offer Period, all of the Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, then Acquisition Sub shall only be required to make payment extend the Offer and its expiration date beyond the Initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of cash dividends 30 business days, to permit the such Offer Condition to be satisfied; and (C) in no event shall Acquisition Sub be required to extend the Offer beyond the End Date; provided further, that the foregoing clauses (i) and (ii) of this Section 1.1(d) shall not be deemed to impair, limit or distributions otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 7. The Offer may not be terminated prior to the Holding Company Initial Expiration Date, or any subsequent date as of which the Offer is scheduled to expire, unless this Agreement is validly terminated in an amount sufficient to enable accordance with Section 7. (e) Acquisition Sub may (and the Holding Company to repurchase, redeem, defease, retire, acquire Offer Documents shall reserve the right of Acquisition Sub to) provide for value or pay a subsequent offering period (within the principal meaning of any such Holding Company Convertible Notes Rule 14d-11 under the Exchange Act) in accordance with Rule 14d-11 under the Exchange Act of not less than three nor more than 20 business days (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (Athis purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the put rights Offer. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Acquisition Sub to, and Acquisition Sub shall, accept for payment and pay for all Company Shares validly tendered during such subsequent offering period as promptly as practicable after any such Company Shares are tendered during such subsequent offering period and in any event in compliance with Rule 14e-1(c) under the Exchange Act. (f) If, between the date of this Agreement and the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 Acceptance Time (but excluding any other put rights thereunderas defined in Section 1.4(a)), the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Per Share Amount shall be adjusted to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionappropriate.

Tender Offer. (a) The Borrower As soon as practicable (but not prior to January 5, 2004), the Stockholders will cause the Company to (i) commence a tender offer and consent solicitation (the "Tender Offer") pursuant to the applicable rules of the Exchange Act for all outstanding 11-5/8% Notes, which shall be conducted in accordance with customary debt tender and exit consent procedures in form and substance reasonably satisfactory to the Buyer and the Company, (ii) keep such Tender Offer open for at least twenty Business Days prior to the Closing Date, (iii) provide in such Tender Offer for a "make-whole" premium equal to (x) 105.813% of the principal amount of the Notes plus all scheduled interest payments due on the Notes from the date specified for the closing of the Tender Offer to January 1, 2005 discounted a rate of interest equal to the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year plus 50 basis points over (y) the principal amount of the Notes, (iv) condition receipt of the Tender Offer consideration by each holder on the execution by the holder receiving such consideration of a consent to an amendment to the 11-5/8% Note Indenture in form and substance reasonably satisfactory to the Buyer and the Company and (v) use its best commercially reasonable efforts to consummate the Tender Offer on the Closing Date on the terms set forth above. The Company and the Buyer will cooperate with respect one another in connection with the preparation of all filings, mailings or other submissions to all be made in connection with the Tender Offer. The Stockholders shall bear the cost of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 premium to be paid in clause (or such later date iii) above and any costs and expenses related to which the Tender Offer may Offer; provided, that the Stockholders shall in no event be extended by the Borrower required to pay a "make-whole" premium in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent excess of the completion amount set forth in clause (iii) above (and the failure to agree to do so shall not be a breach of any covenant or agreement of the Tender Offer TransactionsCompany or any of the Stockholders). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, If at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower prior to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant Closing any information relating to the consummation Company or any Company Subsidiary, or any of its affiliates, officers, directors or employees should be discovered by the Company or any Company Subsidiary that should be set forth in an amendment or supplement to the documents filed or mailed in respect of the Tender Offer and (ii) if so that such documents would not include any Holding Company Convertible Notes remain outstanding after consummation misstatement of the Tender Offer, (A) a material fact or omit to repurchase, redeem, defease, retire or acquire for value or pay the principal of state any of the remaining Holding Company Convertible Notes or (B) material fact necessary to make payment of cash dividends or distributions the statements therein not misleading, the Company will promptly notify the Buyer and, to the Holding Company in extent required by law, rules or regulations, an amount sufficient appropriate amendment or supplement describing such information will promptly be prepared and, if required, filed with the SEC and/or disseminated to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.0011-5/8% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionNotes.

Tender Offer. (a) As promptly as practicable, but in no event later than five business days after the public announcement of the execution of this Agreement, Merger Sub will, and Parent will cause Merger Sub to, offer to purchase (the "OFFER") each outstanding share of Common Stock, $.10 par value (the "COMMON STOCK"), of the Company, including the associated Company Right (as defined in Section 3.06) (together with the Company Right, "COMPANY STOCK"), tendered pursuant to the Offer at a price of $5.40 per share, net to the seller in cash. The Borrower will use its best efforts obligations of Merger Sub and Parent to consummate the Tender Offer and to accept for payment and purchase the Company Stock tendered in the Offer will be subject only to the conditions set forth in Schedule 1.01(a) (Offer Conditions) (the "OFFER CONDITIONS"). The expiration date of the Offer shall be twenty (20) business days after commencement. Parent and Merger Sub agree that if all of the Offer Conditions are not satisfied on such initial expiration date then, provided that Parent determines that all Offer Conditions are reasonably capable of being satisfied and subject to Securities and Exchange Commission (the "SEC") rules with respect to extension of time periods, Merger Sub may extend the Offer from time to time until all Offer Conditions have been satisfied or waived. Parent and Merger Sub agree that upon the expiration date of the Holding Company Convertible Notes tendered thereunder no later than November 5Offer, 2009 (or such later date to which as the Tender Offer same may be extended by in accordance with the Borrower immediately preceding sentence, if all Offer Conditions have been satisfied, Merger Sub shall accept the shares of Company Stock properly tendered for purchase, subject to the right to extend the Offer not more than ten (10) business days in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent aggregate if less than 90% of the completion Company Stock have been properly tendered, such 90% to be calculated after giving effect to the conversion of any securities convertible into Common Stock, and the Tender Offer Transactions)exercise of any options, warrants or other rights to acquire Common Stock. (b) As On the date of the Fourth Restatement Effective Datecommencement of the Offer, Merger Sub and Parent will file with the SEC their Tender Offer Statement on Schedule 14D-1 (together with all supplements or amendments thereto, and including all exhibits, the Borrower "OFFER DOCUMENTS"). Merger Sub and Parent will give the Company and its counsel a reasonable opportunity to review and comment upon the Offer Documents prior to their being filed with the SEC or disseminated to the Company's stockholders. Parent and Merger Sub agree that the Offer Documents shall deposit comply as to form in all material respects with the Initial Second Priority Proceeds Securities Exchange Act of 1934, as amended (less the portion thereof "EXCHANGE ACT"), and the rules and regulations promulgated thereunder, and the Offer Documents, on the date filed with the SEC and on the date first published, sent, or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, stated therein or necessary in order to make the payments provided for statements therein, in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request light of the Borrower circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of its stockholders in writing specifically for inclusion or incorporation by reference in the remaining Holding Offer Documents. Each of Parent, Merger Sub, and the Company Convertible Notes or (B) agrees promptly to make payment of cash dividends or distributions to correct any information provided by it for use in the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub, or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such holders do not exercise such put rights comments. (c) As promptly as practicable, but in no event later than the date on which Parent shall have notified the Company that the Offer Documents initially are to be filed with the SEC, the Company will file its Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all supplements or amendments thereto, and including all exhibits, ("SCHEDULE 14D-9"), which shall include a recommendation by the Company's Board of Directors that the Company's stockholders accept the Offer and tender their Company Stock pursuant to the terms thereofOffer. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder and, within 120 days on the date filed with the SEC and on the date first published, sent, or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit 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 were made, not misleading, except that no representation or warranty is made by the Company with respect to information supplied by Parent or Merger Sub in writing specifically for inclusion in the Schedule 14D-9. Each of the Company, Parent, and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to stockholders of the Company. The Company agrees to provide Parent and its counsel any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the expiration receipt of such put rights, comments. The Company's Board of Directors has resolved to recommend that the Borrower shall apply Company's stockholders accept the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred Offer and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower tender their Company Stock pursuant to the Administrative Agent certifying as to the use of such funds Offer and that such use is permitted under this Section.has received an opinion from Dain

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within three business days of the date hereof, Parent shall cause Merger Sub to amend the Original Offer to increase the price to $6.60 per Share in cash, net to the seller, subject to the conditions set forth in Annex A hereto (as amended, the "Amended Offer") and Parent and Merger Sub will use its best efforts file with the SEC an amendment to consummate the Tender Offer Schedule TO, as amended, filed with respect to all the Original Offer. The Amended Offer Documents shall contain a supplement to the Offer to Purchase, which shall be mailed to the holders of Shares and which shall describe this Agreement and the negotiations preceding this Agreement and shall amend the Original Offer to provide that the Amended Offer shall only be subject to the conditions set forth in Annex A hereto, and to extend the expiration date of the Holding Company Convertible Notes tendered thereunder no later than November 5Amended Offer to 12:00 midnight New York City time on the date ten business days after the date of the Amended Offer Documents, 2009 (it being understood and agreed that, except for the foregoing amendments or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereofas otherwise provided herein, the Borrower Amended Offer shall promptly notify in writing all material respects be on the Administrative Agent same terms and subject to the same conditions as the Original Offer. Without the prior written consent of the completion Company, Merger Sub shall not decrease the price per Share, impose additional conditions to the Amended Offer, extend the expiration date of the Tender Amended Offer Transactionsif the conditions to the Amended Offer have been satisfied, or amend any other term of the Amended Offer in any manner materially adverse to the holders of Shares; provided, however, that Merger Sub shall be permitted (but shall not be required), without the consent of the Company, to elect to provide a subsequent offering period pursuant to Rule 14d-11 under the Exchange Act. Merger Sub shall not be required to extend the expiration date of the Amended Offer if the conditions to the Amended Offer have not been satisfied, provided that Merger Sub shall extend the Amended Offer for up to a total of 20 business days (not more than 10 business days per extension) if the event giving rise to the failure to satisfy a condition is curable within such 20 business day period; provided, further, that if such condition is not satisfied at the end of such 20 business day period, Merger Sub shall not be obligated to extend the Amended Offer. Subject to the terms and conditions of the Amended Offer, Merger Sub will promptly pay for all Shares duly tendered that it is obligated to purchase thereunder. (b) As The Special Committee, under authority delegated by the Company's Board of Directors, shall cause the Company to recommend acceptance of the Fourth Restatement Effective DateAmended Offer to the Company's stockholders in an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 (as so amended, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof "Schedule 14D-9") to be used, together filed with the proceeds SEC upon amendment of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Original Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchaserecommendation may subsequently be withdrawn, redemption, defeasance, retirement, acquisition for value modified or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), amended to the extent that any such holders do not exercise such put rights pursuant to the terms thereofSpecial Committee determines, within 120 days after upon advice by outside counsel, that the expiration of such put rights, the Borrower shall apply the portion fiduciary duties of the balance held in Special Committee under applicable law require such withdrawal, modification or amendment. The Company, Parent and Merger Sub agree to file a Joint Transaction Statement on Schedule 13E-3 with the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, SEC upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any amendment of the Other Debt and/or Original Offer (ythe "Schedule 13E-3"). (c) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral AccountParent agrees, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Supplement to the Offer to Purchase and related Letter of such funds Transmittal (which together constitute the "Amended Offer Documents") and the Schedule 13E-3 and the Company agrees, as to the Schedule 14D-9 and the Schedule 13E-3, that such use is permitted documents shall, in all material respects, comply with the requirements of the Exchange Act and the rules and regulations thereunder and other applicable laws. The Company and its counsel, as to the Amended Offer Documents, and Parent and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents and any subsequent amendments thereto prior to their being filed with the SEC. (d) In connection with the Amended Offer, the Company will cause its Transfer Agent to furnish promptly to Merger Sub an updated list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Merger Sub or its agents may reasonably request in communicating the Amended Offer to the record and beneficial holders of Shares. Merger Sub will reimburse the Company for such assistance in accordance with Rule 14d-5 under this Sectionthe Exchange Act.

Tender Offer. As promptly as reasonably practicable, and in any event within fifteen (a15) The Borrower Business Days after the date hereof, Liberty shall commence (under the meaning of Rule 14d-2 under the Exchange Act) a tender offer to purchase any and all of the outstanding shares of Liberty Common Stock that are not owned by Vintage or its Affiliates (the “Tender OfferSection 5.10(a) 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000D0000005F00520065006600310033003400330032003100360037000000 ” ”) for cash at a price of $12.00 per share, without interest and less any applicable withholding Taxes (the “Tender Consideration”). Liberty agrees that no shares of Liberty Common Stock held by Liberty or any Subsidiary thereof will use its best efforts to consummate be tendered in the Tender Offer. Liberty shall conduct the Tender Offer with respect pursuant to all Regulation 14E of the Holding Company Convertible Notes Exchange Act and will file all applicable Tender Offer documents with the SEC as may be required under the Exchange Act. The obligation of Liberty to accept for payment shares of Liberty Common Stock validly tendered thereunder no later than November 5, 2009 (or such later date and not validly withdrawn pursuant to which the Tender Offer shall be subject only to the satisfaction of each of the conditions set forth in Exhibit D hereto. Unless agreed to by each of Liberty, the Special Committee and Buddy’s, no material change (including changing the amount per share offered to the holders of Liberty Common Stock) may be extended by made to the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent terms or conditions of the completion Tender Offer. The Tender Offer shall expire on the date that is twenty (20) Business Days following the commencement of the Tender Offer Transactions(the “Initial Expiration Date”). ; provided, however, that with Buddy’s prior written consent (b) As of not to be unreasonably conditioned, withheld or delayed), Liberty may extend the Fourth Restatement Effective Tender Offer for one or more consecutive periods beyond the Initial Expiration Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided thatincluding if, at any time after scheduled expiration of the Fourth Restatement Effective Tender Offer, the conditions set forth in the Tender Offer or in Exhibit D hereto have not been satisfied or waived (the Initial Expiration Date, so long as no Default shall have occurred and be continuingextended, the funds from “Expiration Time”). Notwithstanding the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at foregoing, Liberty, without the request consent of the Borrower Member Representative, may extend the Tender Offer for any period required by any Law or the SEC. Notwithstanding anything to the Administrative Agent solely (contrary herein, but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant subject in all respects to the consummation consent rights of the Member Representative expressly set forth in this Section 5.10, any and all decisions regarding the Tender Offer, including the timing of the commencement of the Tender Offer and the TO Redemption and TO Redemption Amount (ii) if any Holding Company Convertible Notes remain outstanding after as such terms are defined in the A&R New Holdco LLC Agreement), shall be made in the sole discretion of the Special Committee (but in the case of the TO Redemption and TO Redemption Amount, subject to the terms and conditions of the A&R New Holdco LLC Agreement), and Buddy’s shall not, and shall cause its Affiliates not to, directly or indirectly, knowingly impede, interfere with or otherwise disrupt the commencement or consummation of the Tender Offer. Liberty may not use any proceeds from the Subscription Agreements or any Debt Financing for any purpose other than (x) the payment of the Tender Consideration, (Ay) payment of Indebtedness under the Existing Credit Facilities with respect to repurchaseBuddy’s and (z) payment of transaction costs, redeemfees and expenses incurred in connection with this Agreement or the Transactions and the Ancillary Agreements and the Ancillary Transactions or for which Liberty is made responsible pursuant to this Agreement; provided, defease, retire or acquire for value or pay that following the principal of any payment of the remaining Holding Company Convertible Notes or amounts described in the immediately preceding clauses (Bx) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes through (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (Az) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant and subject to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion and conditions of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy A&R New Holdco LLC Agreement, Liberty may use any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower net proceeds from the Initial Second Subscription Agreements or any Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionFinancing for any other purpose.

Tender Offer. (a) The Borrower will use its best efforts to consummate Unless this Agreement shall have previously been validly terminated in accordance with Section 7, as promptly as practicable, but in any event within ten business days after the Tender date of this Agreement, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer with respect to for all of the Holding outstanding Company Convertible Notes tendered thereunder no later than November 5Shares (subject to Section 5.8(c)) at a price per Company Share equal to the Per-Share Amount. (The date on which Acquisition Sub commences the Offer, 2009 (or such later date within the meaning of Rule 14d-2 under the Exchange Act, is referred to which in this Agreement as the Tender "Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer TransactionsCommencement Date."). (b) As of promptly as practicable on the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) later of: (i) the earliest date as of which Acquisition Sub is permitted under applicable law to purchase the Holding accept for payment Company Convertible Notes Shares tendered pursuant to the consummation of the Tender Offer (and not validly withdrawn); and (ii) if any Holding Company Convertible Notes remain outstanding after consummation the earliest date as of which each of the Tender conditions set forth in Annex I (the "Offer Conditions") shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment all Company Shares tendered pursuant to the Offer (and not validly withdrawn); provided, however that the Offer may be automatically extended from time to time in accordance with Section 1.1(d). The obligation of Acquisition Sub to accept for payment Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the acceptance for payment of any Company Shares tendered pursuant to the Offer (and not validly withdrawn), Acquisition Sub shall pay for such Company Shares. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Acquisition Sub shall (without the prior written consent of the Company): (i) change or waive the Minimum Condition (as defined in Annex I); (ii) decrease the number of Company Shares sought to be purchased by Acquisition Sub in the Offer, ; (Aiii) reduce the price per share to repurchase, redeem, defease, retire be paid pursuant to the Offer; (iv) extend or acquire for value otherwise change the expiration date of the Offer (except to the extent required pursuant to Section 1.1(d)); (v) change the form of consideration payable in the Offer; (vi) amend or pay the principal of modify any of the remaining Holding Company Convertible Notes Offer Conditions in any manner adversely affecting, or (B) that could reasonably be expected to make payment of cash dividends or distributions to the Holding Company in have an amount sufficient to enable the Holding Company to repurchaseadverse effect on, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of Company Shares; (vii) impose any condition to the Holding Company 3.00% Convertible Notes on May 15Offer in addition to the Offer Conditions; or (viii) amend, 2010 and/or modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Shares. (d) Unless extended as provided in this Agreement, the Holding Company 4.875% Convertible Notes Offer shall expire on January 15the date (the "Initial Expiration Date") that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, 2011 if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (but excluding any other put rights thereundera "Subsequent Expiration Date"), any Offer Condition is not satisfied and has not been waived, then the Offer and its expiration date shall automatically be extended (and re-extended) beyond the Initial Expiration Date or such Subsequent Expiration Date for one or more periods of ten business days (or such other number of business days as may be jointly determined by Acquisition Sub and the Company) per extension, with no such period ending later than February 28, 2006, in order to permit such Offer Condition to be satisfied (subject to the right of Acquisition Sub to waive any unsatisfied Offer Condition (other than the Minimum Condition) on the Initial Expiration Date or such Subsequent Expiration Date and accept for payment Company Shares tendered pursuant to the Offer (and not validly withdrawn)). The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Section 7. Notwithstanding anything to the contrary contained in this Section 1.1(d), but subject to the Company's rights under Section 7.1, Acquisition Sub may increase the price per share to be paid pursuant to the Offer and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company's consent, provided that any such holders the Offer shall not be extended beyond February 28, 2006. (e) Acquisition Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act following the Acceptance Time (as defined in Section 1.4(a)). If immediately after the Acceptance Time, the Company Shares accepted for payment by Acquisition Sub do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion represent at least 90% of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (oroutstanding Company Shares, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower then Acquisition Sub shall provide for a certificate signed by a senior officer subsequent offering period of at least three business days in accordance with Rule 14d-11 under the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionExchange Act.

Tender Offer. (a) The Borrower will use its best efforts to consummate Unless this Agreement shall have previously been validly terminated in accordance with Section 7, as promptly as practicable, but in any event within ten business days after the Tender date of this Agreement, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer with respect to for all of the Holding outstanding Company Convertible Notes tendered thereunder no later than November 5Shares (subject to Section 5.8(c)) at a price per Company Share equal to the Per-Share Amount. (The date on which Acquisition Sub commences the Offer, 2009 (or such later date within the meaning of Rule 14d-2 under the Exchange Act, is referred to which in this Agreement as the Tender “Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer TransactionsCommencement Date.”). (b) As of promptly as practicable on the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) later of: (i) the earliest date as of which Acquisition Sub is permitted under applicable law to purchase the Holding accept for payment Company Convertible Notes Shares tendered pursuant to the consummation of the Tender Offer (and not validly withdrawn); and (ii) if any Holding Company Convertible Notes remain outstanding after consummation the earliest date as of which each of the Tender conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment all Company Shares tendered pursuant to the Offer (and not validly withdrawn); provided, however that the Offer may be automatically extended from time to time in accordance with Section 1.1(d). The obligation of Acquisition Sub to accept for payment Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after the acceptance for payment of any Company Shares tendered pursuant to the Offer (and not validly withdrawn), Acquisition Sub shall pay for such Company Shares. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Acquisition Sub shall (without the prior written consent of the Company): (i) change or waive the Minimum Condition (as defined in Annex I); (ii) decrease the number of Company Shares sought to be purchased by Acquisition Sub in the Offer, ; (Aiii) reduce the price per share to repurchase, redeem, defease, retire be paid pursuant to the Offer; (iv) extend or acquire for value otherwise change the expiration date of the Offer (except to the extent required pursuant to Section 1.1(d)); (v) change the form of consideration payable in the Offer; (vi) amend or pay the principal of modify any of the remaining Holding Company Convertible Notes Offer Conditions in any manner adversely affecting, or (B) that could reasonably be expected to make payment of cash dividends or distributions to the Holding Company in have an amount sufficient to enable the Holding Company to repurchaseadverse effect on, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of Company Shares; (vii) impose any condition to the Holding Company 3.00% Convertible Notes on May 15Offer in addition to the Offer Conditions; or (viii) amend, 2010 and/or modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Shares. (d) Unless extended as provided in this Agreement, the Holding Company 4.875% Convertible Notes Offer shall expire on January 15the date (the “Initial Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, 2011 if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (but excluding any other put rights thereundera “Subsequent Expiration Date”), any Offer Condition is not satisfied and has not been waived, then the Offer and its expiration date shall automatically be extended (and re-extended) beyond the Initial Expiration Date or such Subsequent Expiration Date for one or more periods of ten business days (or such other number of business days as may be jointly determined by Acquisition Sub and the Company) per extension, with no such period ending later than February 28, 2006, in order to permit such Offer Condition to be satisfied (subject to the right of Acquisition Sub to waive any unsatisfied Offer Condition (other than the Minimum Condition) on the Initial Expiration Date or such Subsequent Expiration Date and accept for payment Company Shares tendered pursuant to the Offer (and not validly withdrawn)). The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Section 7. Notwithstanding anything to the contrary contained in this Section 1.1(d), but subject to the Company’s rights under Section 7.1, Acquisition Sub may increase the price per share to be paid pursuant to the Offer and extend the Offer to the extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s consent, provided that any such holders the Offer shall not be extended beyond February 28, 2006. (e) Acquisition Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act following the Acceptance Time (as defined in Section 1.4(a)). If immediately after the Acceptance Time, the Company Shares accepted for payment by Acquisition Sub do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion represent at least 90% of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (oroutstanding Company Shares, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower then Acquisition Sub shall provide for a certificate signed by a senior officer subsequent offering period of at least three business days in accordance with Rule 14d-11 under the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionExchange Act.

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in paragraphs (a) through (g) of Annex A hereto shall have occurred or be existing and the other conditions to the Offer specified in Annex A shall have been satisfied (together with such events, the "Offer Conditions"), as soon as reasonably practicable, and in any event within five Business Days after public announcement of this Agreement, Merger Sub will use its best efforts to consummate commence a tender offer (the Tender Offer with respect to "Offer") for all of the Holding Company Convertible Notes outstanding Shares (as defined below) at a price of $25.50 per Share in cash, net to the seller, and, subject only to and in accordance with the terms and conditions of the Offer, accept for payment Shares that are validly tendered thereunder and not withdrawn immediately following (unless the Offer shall have been extended in accordance with the terms hereof) the later of (i) the date on which the waiting period under the HSR Act has expired or has been terminated and (ii) the twentieth Business Day after the commencement of the Offer; provided, however, and notwithstanding anything to the contrary in the foregoing, it is understood and agreed that (A) if any of the Offer Conditions specified in paragraphs (a) through (h) of Annex A exists at the time of the scheduled expiration date of the Offer or if, the applicable waiting periods under the HSR Act have not expired or been earlier terminated, Merger Sub may extend and reextend the Offer on one or more occasions for periods of time (not to exceed ten Business Days for any particular extension) so that the expiration date of the Offer (as so extended) is as soon as reasonably practicable or advisable after the date on which the particular Offer Condition no later longer exists, and (B) Merger Sub may extend and reextend the Offer on one or more occasions for periods of time (not to exceed ten Business Days for any particular extension) for an aggregate period not to exceed twenty Business Days if on such expiration date there shall not have been validly tendered and not withdrawn at least the number of Shares necessary to permit the Merger to be effected without a meeting of the Company's stockholders, and; provided, further, that all extensions of the Offer made by Merger Sub (other than November at the request of the Company) shall not extend the Offer beyond September 5, 2009 (or 1999. Parent and Merger Sub agree that until September 5, 1999 Merger Sub shall from time to time extend the Offer at such later date to which times as the Tender Company may request for five Business Days for each extension, but shall in no event extend the Offer may be extended by beyond September 5, 1999. Merger Sub shall not, without the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent prior written consent of the completion Company, decrease the price per Share offered in the Offer, change the form of consideration offered or payable in the Offer, decrease the numbers of Shares sought in the Offer, change the conditions to the Offer, impose additional conditions to the Offer, amend any term of the Tender Offer Transactionsin any manner adverse to the holders of Shares or waive the Minimum Conditions (as defined in Annex A). (b) As soon as reasonably practicable on the date the Offer is commenced, Merger Sub shall file a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with the SEC with respect to the Offer. The Schedule 14D-1 shall contain an Offer to Purchase and forms of the Fourth Restatement Effective Daterelated letter of transmittal and other documents relating to the Merger (which Schedule 14D-1, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof Offer to be usedPurchase, letter of transmittal and other documents, together with any supplements or amendments thereto, are referred to herein collectively as the proceeds of "Offer Documents"). Parent and Merger Sub agree that the Tranche B Term Loans Company and its counsel shall be given an opportunity to review the Schedule 14D-1 before it is filed with the SEC. Parent, Merger Sub and the Tranche B-1 Term Loans, Company each agrees promptly to make correct any information provided by it for use in the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default Offer Documents that shall have occurred become false or misleading in any material respect, and be continuing, Parent and Merger Sub further agree to take all steps necessary to cause the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available Schedule 14D-1 as so corrected to be withdrawn at filed with the request of SEC and the Borrower other Offer Documents as so corrected to the Administrative Agent solely (but for no other purpose) (i) be disseminated to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15Shares, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), in each case as and to the extent required by applicable federal securities laws. Parent and Merger Sub also agree that the Offer Documents shall comply with the requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations thereunder. (c) The Company's Board of Directors shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") substantially contemporaneously with the filing of the Schedule 14D-1; provided, however, that if the Company's Board of Directors determines consistent with its fiduciary duties to amend or withdraw such recommendation, such amendment or withdrawal shall not constitute a breach of this Agreement. Merger Sub and its counsel shall be given an opportunity to review the Schedule 14D-9 before it is filed with the SEC. Parent, Merger Sub and the Company each agrees promptly to correct any such information provided by it for use in the Schedule 14D-9 that shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected to be disseminated to holders do not exercise such put rights pursuant of shares, in each case as and to the terms thereofextent required by the applicable federal securities laws. The Company also agrees that the Schedule 14D-9 shall comply with the requirements of the Exchange Act and the rules and regulations thereunder. (d) In connection with the Offer, within 120 days after the expiration of such put rightsif requested by Parent, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Section.Company will promptly notify its Transfer Agent

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within five business days of the date hereof, Merger Sub will use its best efforts to consummate commence a tender offer (the Tender Offer with respect to "Offer") for all of the Holding Company Convertible Notes tendered thereunder no later than November 5outstanding shares of Common Stock, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent par value $0.001 per share of the completion Company (the "Shares"), together with the associated rights to purchase (the "Rights") Series A Junior Participating Preferred Stock of the Tender Company (the "Series A Preferred") at a price of $17.10 per Share in cash, net to the seller, subject only to the conditions set forth in Annex A hereto. Subject to the terms and conditions of the Offer, Purchaser will promptly pay for all Shares duly tendered. The Company's Board of Directors shall recommend acceptance of the Offer Transactions)to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") to be filed with the Securities and Exchange Commission (the "SEC") upon commencement of the Offer. (b) As of the Fourth Restatement Effective DatePurchaser agrees, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer to Purchase and related Letter of such funds Transmittal (which together constitute the "Offer Documents") and the Company agrees, as to the Schedule 14D-9, that such use is permitted under this Sectiondocuments shall, in all material respects, comply with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations thereunder and other applicable laws. The Company and its counsel, as to the Offer Documents, and Merger Sub and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. (c) In connection with the Offer, the Company will cause its Transfer Agent to furnish promptly to Merger Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) The Borrower Prior to the Closing Date, Purchaser will use provide its best efforts shareholders with the opportunity to consummate the Tender Offer with respect redeem their ordinary shares for cash equal to all their pro rata share of the Holding Company Convertible Notes tendered thereunder no later than November 5aggregate amount then on deposit in the AAC Trust Account, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (andless Taxes, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of transactions contemplated hereby (the “Tender Offer”). Unless otherwise agreed to by the Parties, Purchaser shall conduct the Tender Offer Transactions). without seeking or obtaining a shareholder vote. The Tender Offer shall be conducted in accordance with all applicable Laws (b) As including Rule 13e-4.1 and Regulation 14E of the Fourth Restatement Effective DateExchange Act (as modified, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof waived or otherwise agreed to be used, together with the proceeds Commission)), which regulates issuer Tender Offers, and will file the Offer Documents with the Commission. The Offer Documents will comply as to form in all material respects with the requirements of the Tranche B Term Loans Exchange Act and other applicable federal and state securities Laws. The obligation of Purchaser to accept for payment ordinary shares validly tendered and not validly withdrawn pursuant to the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account Tender Offer shall be available subject to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) the condition (the “Maximum Tender Condition”) that at least 8% of the Purchaser Ordinary Shares issued as part of Purchaser’s initial public offering will be issued and outstanding immediately after giving effect to purchase the Holding Company Convertible Notes redemption of the Purchaser Ordinary Shares issued as part of the Purchaser’s initial public offering which are (x) not voted on, by abstention or otherwise, or are voted against, the necessary amendments to the Articles of Association of Purchaser to extend the “Termination Date” (as defined in the first sentence of Section 157 of the Purchaser’s Articles of Association) beyond August 15, 2012 (but in no event to a date later than November 15, 2012), and (y) validly tendered and not validly withdrawn pursuant to and prior to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation expiration of the Tender Offer, and (Aii) to repurchase, redeem, defease, retire or acquire for value or pay the principal satisfaction of any each of the remaining Holding Company Convertible Notes other conditions set forth in Exhibit F hereto. Purchaser may not waive the Maximum Tender Condition or the other conditions set forth in Exhibit F (Bexcept for conditions to be satisfied by Sellers) without the consent of Sellers’ Representative and, unless agreed to make payment of cash dividends by Sellers’ Representative or distributions required by the Commission, no material change may be made to the Holding Company Tender Offer which imposes conditions to the Tender Offer in an amount sufficient addition to enable those set forth in Exhibit F hereto or is inconsistent with this Section 9.3 except as required to comply with any rule, regulation or interpretation of the Holding Company Commission, or the staff thereof, applicable to repurchasethe Tender Offer. The Parties hereby agree to negotiate in good faith to amend Exhibit F to reflect any changes that may be reasonably required as a result of discussions with the Commission or its staff. Furthermore, redeemPurchaser may not waive any failure by a holder to validly tender his, defease, retire, acquire for value her or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly its ordinary shares prior to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights Tender Offer, without the prior written consent of Sellers’ Representative. Notwithstanding the foregoing, Purchaser may, without the consent of Sellers’ Representative, (i) extend the Offer for one or more period(s) beyond the scheduled expiration date, which initially shall be no earlier than twenty (20) Business Days following the commencement of the holders Tender Offer (the “Initial Expiration Date”), if, at any scheduled expiration of the Holding Company 3.00% Convertible Notes on May 15Tender Offer, 2010 the Maximum Tender Condition and/or the holders conditions set forth in Exhibit F, have not been satisfied or waived, or (ii) extend or amend the Tender Offer for any period (the Initial Expiration Date as extended, the “Expiration Time”) required by any rule, regulation or interpretation of the Holding Company 4.875% Convertible Notes on January 15Commission, 2011 (but excluding any other put rights thereunder)or the staff thereof, applicable to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionTender Offer.

Tender Offer. (a) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as practicable, but in any event within the fifteen (15) Business Day period commencing on the first (1st) Business Day after the date hereof, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all of the outstanding Company Common Stock (including any Company Common Stock subject to repurchase rights in favor of the Company) at a price per share equal to the Offer Price. The Borrower will use its best efforts date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I. (b) Subject to the Company’s right to require that Merger Sub extend the Offer pursuant to Section 2.1(e), as promptly as practicable on the later of (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the conditions set forth in Annex I (the “Offer Conditions”) shall have been satisfied or waived, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer and irrevocably accept for purchase all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Merger Sub to consummate the Tender Offer with respect and irrevocably accept for purchase Company Common Stock tendered pursuant to all the Offer shall be subject only to the satisfaction or waiver of each of the Holding Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after (and in any event, no more than three (3) Business Days after) the irrevocable acceptance for purchase of any shares of Company Convertible Notes Common Stock tendered thereunder no later than November 5pursuant to the Offer, 2009 Merger Sub shall pay (subject to any applicable withholding tax) for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The per share amount shall be paid to the holder of Company Common Stock in cash, net of applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Merger Sub shall, without the prior written consent of the Company: (i) amend, modify or waive the Minimum Condition; (ii) decrease the number of shares of Company Common Stock sought to be purchased by Merger Sub in the Offer; (iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(f)); (iv) increase the Offer Price, except in response to a Change in Recommendation or a Superior Proposal Notice; (v) extend or otherwise change the expiration date of the Offer (except to the extent required or permitted pursuant to Section 2.1(e)); (vi) change the form of consideration payable in the Offer; (vii) impose any condition to the Offer in addition to the Offer Conditions; (viii) provide a “subsequent offering period” (or such later any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act; (ix) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or (x) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL. (d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Tender Offer may be has been so extended by (the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions“Expiration Date”). (be) As of Notwithstanding anything to the Fourth Restatement Effective contrary contained herein, but subject to the Parties’ respective termination rights under Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (i) if on the then-scheduled Expiration Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds Minimum Condition has not been satisfied or any of the Tranche B Term Loans and other Offer Conditions has not been satisfied, or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall extend the Tranche B-1 Term Loans, Offer for one (1) or more occasions in consecutive increments of up to make ten (10) Business Days each (or such longer period as may be requested by the payments provided for Company) in Section 5.01(f)) directly into order to permit the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request satisfaction of the Borrower such Offer Conditions (subject to the Administrative Agent solely (but for no right of Parent or Merger Sub to waive any Offer Condition, other purpose) (i) to purchase than the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer Minimum Condition); and (ii) if any Holding Company Convertible Notes remain outstanding after consummation Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the Tender SEC or its staff or the New York Stock Exchange (“NYSE”) or its staff applicable to the Offer; provided, however, that in no event under this Agreement shall Parent or Merger Sub: (A1) be required to repurchaseextend the Offer beyond the earlier to occur of (x) the valid termination of this Agreement in compliance with Article 8 and (y) the End Date (such earlier occurrence, redeem, defease, retire or acquire for value or pay the principal of any “Extension Deadline”); (2) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the remaining Holding Company Convertible Notes Company; or (B3) be required to make payment extend the Offer beyond the then-existing Expiration Date for more than three (3) consecutive additional periods not to exceed an aggregate of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes thirty (30) Business Days (provided that each such payments period will be ten (10) Business Days unless the Company agrees otherwise), if, as of the applicable Expiration Date, all of the Offer Conditions are applied directly satisfied or have been waived other than the Minimum Condition and conditions which by their nature are to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following be satisfied at the expiration of the put rights Offer. (f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date hereof and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or same economic effect as contemplated by this Agreement prior to such action. (g) Neither Parent nor Merger Sub shall terminate or withdraw the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), Offer prior to the extent then-scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that any such holders do not exercise such put rights this Agreement is validly terminated pursuant to the terms thereofhereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 120 days after the expiration twenty-four (24) hours of such put rightstermination or the next Business Day, if terminated on a non-Business Day), irrevocably and unconditionally terminate the Borrower Offer, shall apply the portion not acquire any shares of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower Company Common Stock pursuant to the Administrative Agent certifying as Offer and shall return and cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the use of such funds and that such use is permitted under this Sectionregistered holders thereof.

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within five business days of the date hereof, Purchaser will use its best efforts to consummate commence a tender offer (the Tender Offer with respect to "Offer") for all of the Holding Company Convertible Notes outstanding Shares that it currently does not directly or indirectly own at a price of $19.50 per Share in cash, net to the seller, subject to the conditions set forth in Annex A hereto. Subject to the terms and conditions of the Offer, Purchaser will promptly pay for all Shares duly tendered thereunder no later than November 5, 2009 that it is obligated to purchase thereunder. The Company's Board of Directors and a majority of the Company's Independent Directors (or as defined in Section 4.2) shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (as such later date to which the Tender Offer statement may be extended by the Borrower in good faith) (and, upon the consummation thereofamended or supplemented from time to time, the Borrower shall promptly notify in writing "Schedule 14D- 9") to be filed with the Administrative Agent Securities and Exchange Commission (the "SEC") upon commencement of the completion Offer; provided, however, that if the Company's Board of Directors or the Special Committee (the "Special Committee") composed of the Tender Company's Independent Directors determines that its fiduciary duties require it to amend or withdraw its recommendation, such amendment or withdrawal shall not constitute a breach of this Agreement. Purchaser will not, without the prior written consent of the Company and the Special Committee, decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought or change the conditions to the Offer. Purchaser shall not terminate or withdraw the Offer Transactions)or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer set forth on Annex A hereto shall not have been satisfied or waived. (b) As of the Fourth Restatement Effective DatePurchaser agrees, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer to Purchase and related Letter of such funds Transmittal (which together, as either of them may be amended or supplemented from time to time, constitute the "Offer Documents"), and the Company agrees, as to the Schedule 14D-9, that such use is permitted under this Sectiondocuments shall, in all material respects, comply with the requirements of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and other applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. (c) In connection with the Offer, the Company will cause its Transfer Agent to furnish promptly to Purchaser a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Purchaser with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within five business days after the public announcement of the execution of this Agreement, Purchaser Sub will use its best efforts to consummate commence a tender offer (the Tender Offer with respect to "Offer") for all of the Holding outstanding shares of ----- common stock, par value $0.001 per share (the "Shares"), of the Company Convertible Notes tendered thereunder no at a ------ price of $16.00 per Share in cash, net to the seller, which Offer shall have an initial expiration date not later than November 5, 2009 twenty (20) business days after the commencement of the Offer. The obligation of Purchaser Sub to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction or such later date waiver of the conditions to which the Tender Offer set forth in Annex A hereto. It is agreed that the Minimum Condition (as defined in Annex A) and the other conditions set forth in Annex A hereto are for the sole benefit of Purchaser Sub and may be extended asserted by Purchaser Sub regardless of the circumstances giving rise to any such condition unless the Purchaser, Purchaser Sub or their Affiliates shall have caused the circumstances giving rise to such condition. Purchaser Sub expressly reserves the right in its sole discretion to waive, in whole or in part, at any time or from time to time, any such condition (other than the Minimum Condition, which may not be waived without the prior written consent of the Company), to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer, provided that, unless previously approved by the Borrower Company in good faith) (andwriting, upon no change -------- may be made that decreases the consummation thereofprice per Share payable in the Offer, reduces the Borrower shall promptly notify Minimum Condition, changes the form of consideration payable in writing the Administrative Agent Offer, reduces the maximum number of Shares to be purchased in the Offer, imposes conditions to the Offer in addition to those set forth in Annex A hereto or amends or modifies such conditions in any manner adverse to the holders of Shares. Purchaser Sub covenants and agrees that, subject to the conditions of the completion Offer set forth in Annex A hereto, Purchaser Sub shall accept for payment and pay for Shares that have been validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law; provided that, if the number of Shares that have been validly tendered and not withdrawn represent less than 90% of the Tender Shares outstanding on a fully diluted basis, Purchaser Sub may extend the Offer Transactions)up to the fifth business day following the date on which all conditions to the Offer shall first have been satisfied or waived. (b) As of the Fourth Restatement Effective DatePurchaser agrees, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the offer to purchase and related letter of transmittal (which together constitute the "Offer Documents") and the Company --------------- agrees, as to the Schedule 14D-9, that such documents shall, in all material respects, comply with the requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations thereunder and other ------------ applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser Sub and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. (c) In connection with the Offer, the Company will cause its transfer agent to furnish promptly to Purchaser Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Purchaser Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Purchaser Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Purchaser Sub and its Affiliates and Associates shall hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will deliver to the Company all copies of such funds and that such use is permitted under this Sectioninformation then in their possession.

Tender Offer. (a) The Borrower will use its best efforts Investor shall commence, no later that five (5) business days after the entry by the Bankruptcy Court of the Investment Agreement Approval Order, a tender offer (the “Tender Offer”) for any and all of (i) the outstanding Notes, (ii) allowed general unsecured claims of the Debtors (other than Satellite Services) as set forth in Sections 2.21(b)(ii) of the Company Disclosure Letter, but only to consummate the extent of the “Total Amount to Be Tendered” (as such amount is reflected in such Section of the Company Disclosure Letter), (iii) allowed general unsecured claims of Satellite Services as set forth in Section 2.21(b)(i) of the Company Disclosure Letter, (iv) Convenience Class Claims and (v) allowed non-ordinary course administrative claims of the Debtors relating to cure amounts for contracts previously assumed as set forth in Section 2.21(b)(vi) of the Company Disclosure Letter (collectively, the “Subject Claims”), in each case pursuant to the terms set forth in the term sheet attached as Exhibit D hereto (the “Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faithTerm Sheet”) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions)and this Section 4.13. (b) As The Tender Offer shall be conducted in accordance with and by means of the Fourth Restatement Effective Datean Offer to Purchase and such other necessary related letters of transmittal and ancillary agreements, the Borrower which in each case shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together consistent with the proceeds of terms set forth in the Tranche B Tender Offer Term Loans Sheet and this Section 4.13 (the Tranche B-1 Term Loans“Tender Offer Documents”). Promptly following the date hereof, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default Investor shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation prepare drafts of the Tender Offer Documents. Following their completion, Investor shall provide such drafts to the Company and its counsel for review and shall accept all reasonable comments thereon by the Company or its counsel (and to the extent Investor and the Company disagree concerning any such comments, they shall work together in good faith to resolve such disagreements as soon as reasonably practicable). Investor shall take all actions with its reasonable control to ensure that the Tender Offer Documents conform to all requirements of applicable law and that the Tender Offer is conducted in accordance with applicable law. The Company hereby consents to the Tender Offer and to the purchase of the Subject Claims in accordance with the terms of the Tender Offer. (c) In connection with the Tender Offer, the Company shall furnish or cause to be furnished to Investor mailing labels, mailing lists, securities position listings, Depository Trust Company participant information with respect to any of the Subject Claims, records of the amounts of Subject Claims, any available listing or computes files containing the names and addresses of all Claimholders as of a recent date, and shall furnish or cause to be furnished to Investor such additional information (including, updated lists of Claimholders, and their addresses, mailing labels and lists of securities positions) and assistance as Investor or its agents may reasonably request in communicating the Tender Offer to Claimholders. The Company shall, as promptly as practicable, provide to Investor all information reasonably requested by Investor and concerning the Company for inclusion in the Tender Offer Documents necessary for such Tender Offer Documents and the Tender Offer to comply with applicable Law. (d) The obligation of Investor to accept for payment and pay for any Subject Claims tendered pursuant to the Tender Offer shall be subject to the satisfaction, or written waiver by Investor, of the conditions (but only such conditions) identified in the section of the Tender Offer Term Sheet entitled “Conditions to Closing of Tender Offer” (the “Tender Conditions”). Subject to the satisfaction, or written waiver by Investor, of the Tender Conditions as of the Expiration Date (as defined below), Investor shall accept and pay for any and all Subject Claims validly tendered and not properly withdrawn pursuant to the Tender Offer as promptly as practicable, but in any event not later than three (3) business days, following the Expiration Date. Investor shall not (i) decrease the price to be paid with respect to any of the Subject Claims, (ii) if change the form of consideration payable in the Tender Offer, (iii) reduce the number or type of Subject Claims tendered for in the Tender Offer, ( iv) extend the Expiration Date at any Holding time when all of the Tender Conditions have been satisfied or waived in writing by Investor, (v) make any other modification to the terms of the Tender Offer that is material and adverse to the Company Convertible Notes remain outstanding after or any holders of Subject Claims or (vi) without the prior written consent of the Company, make any other modification to the terms of the Tender Offer that is not otherwise covered by clauses (i)-(v) and which is adverse to the Company or any holders of Subject Claims. (e) Unless extended in accordance with the provisions of this Section 4.13(e), the Tender Offer shall expire at 11:59 p.m., New York City time, on the date that is twenty (20) business days following the date on which the Tender Offer is commenced (the “Expiration Date”). If on or prior to the Expiration Date not all of the Tender Conditions have been satisfied or waived in writing by Investor, Investor shall extend the Expiration Date for successive periods of five (5) business days each in order to permit the satisfaction of the Tender Conditions; provided, that Investor shall not be required to extend the Expiration Date beyond the End Date (as defined below). In the event that any Restraint prohibits the consummation of the Tender Offer, (A) the parties shall use reasonable best efforts to repurchaseget such Restraint removed as promptly as practicable. In addition, redeemInvestor shall extend the Tender Offer for any period or periods required by applicable law or order. In no event shall Investor terminate the Tender Offer prior to the Expiration Date without the prior written consent of the Company. Notwithstanding the generality of the foregoing, defease, retire or acquire for value or pay Investor may refuse to extend the principal of Expiration Date and/or terminate the Tender Offer prior to the Expiration Date if at any time any of the remaining Holding Company Convertible Notes or (B) to make payment Tender Conditions has become incapable of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionbeing satisfied.

Tender Offer. (a) The Borrower will use its best efforts Unless this Agreement shall have previously been validly terminated in accordance with Article 8, as promptly as reasonably practicable, but in any event on or prior to consummate the Tender tenth (10th) Business Day following the date hereof, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer with respect to purchase for cash all of the Holding outstanding Company Convertible Notes tendered thereunder no later than November 5Common Stock at a price per share equal to the Offer Price. The date on which Merger Sub commences the Offer, 2009 within the meaning of Rule 14d-2 under the Exchange Act, is referred to as the “Offer Commencement Date.” The Offer shall be subject only to the conditions set forth on Annex I (or such later date to which the Tender “Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer TransactionsConditions”). (b) As Subject to the provisions of this Section 2.1, as promptly as practicable on the later of (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Company Common Stock tendered pursuant to the Offer (and not validly withdrawn), and (ii) the earliest date as of which each of the Fourth Restatement Effective Offer Conditions shall have been satisfied or waived, Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably accept for payment all Company Common Stock tendered pursuant to the Offer (and not validly withdrawn). The obligation of Merger Sub to irrevocably accept for payment Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). As promptly as possible after (and in any event, no more than two (2) Business Days after) the irrevocable acceptance for payment of any shares of Company Common Stock tendered pursuant to the Offer, Merger Sub shall pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Merger Sub shall (without the prior written consent of the Company): (i) amend, modify or waive the Minimum Condition; (ii) decrease the number of shares of Company Common Stock sought to be purchased by Merger Sub in the Offer; (iii) reduce the Offer Price (except to the extent required pursuant to Section 2.1(g)); (iv) increase the Offer Price, except in response to a Change in Recommendation, a Change in Circumstances Notice or a Superior Proposal Notice; (v) extend or otherwise change the expiration date of the Offer (except as otherwise provided in this Section 2.1); (vi) change the form of consideration payable in the Offer; (vii) impose any condition to the Offer in addition to the Offer Conditions; (viii) amend, modify or supplement any of the terms of the Offer in any manner adversely affecting, or that could reasonably be expected to have an adverse effect on, any of the holders of Company Common Stock; or (ix) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL. (d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (for this purpose determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such date and time, the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, as it may be extended pursuant to and in accordance with this Agreement, the “Expiration Date”). (e) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time as follows: (i) if on the then scheduled Expiration Date, the Borrower Minimum Condition has not been satisfied or any of the other Offer Conditions has not been satisfied, or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall deposit extend the Initial Second Priority Proceeds Offer for one (less 1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed by the portion thereof Company and Parent) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Condition to the extent permitted hereunder); provided, however, that Merger Sub shall not be required to extend the Offer and the then scheduled Expiration Date to a date later than the End Date; and (ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. (f) If on any then scheduled Expiration Date (i) all of the Offer Conditions have been satisfied (other than those Offer Conditions that by their nature are to be usedsatisfied at the Acceptance Time, together with but which conditions would be capable of being satisfied as of such scheduled Expiration Date) and (ii) the proceeds full amount of the Tranche B Term Loans Debt Financing has not been funded and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall will not be available to be withdrawn funded at the request Offer Closing and the Closing, other than as a result of a breach or failure to perform by any of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal Covis Parties of any of their representations, warranties or covenants set forth in Section 5.6 or Section 6.14, then (1) Merger Sub shall, and Parent shall cause Merger Sub to, extend the remaining Holding Offer for two (2) successive periods of up to five (5) Business Days per extension (each such period to end at midnight (New York City time) on the last Business Day of such period) and (2) thereafter Merger Sub shall have the right in its sole discretion to extend the Offer for additional successive periods of up to five (5) Business Days per extension (each such period to end at midnight (New York City time) on the last Business Day of such period), the length of each such period to be determined by Parent in its sole discretion; provided that (x) in no event shall the Offer be extended to a date later than the End Date and (y) if Merger Sub so extends the Offer pursuant to this clause all Offer Conditions set forth in clauses 2(c)(i) and 2(f) of Annex 1 will be deemed to have been irrevocably satisfied or waived from and at all times after the initial extension of the Offer by Merger Sub pursuant to this clause. (g) If, between the date hereof and the Acceptance Time, the outstanding Company Convertible Notes Common Stock are changed into a different number or (B) to make payment class of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal shares by reason of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchasestock split, redemptiondivision or subdivision of shares, defeasancestock dividend, retirementreverse stock split, acquisition for value consolidation of shares, reclassification, recapitalization or payment of principal); provided further that (A) following other similar transaction, then the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), Offer Price shall be adjusted to the extent appropriate; provided that nothing in this Section 2.1(g) shall be construed to permit the Company to take any such holders do not exercise such put rights action with respect to its securities that is prohibited by the terms of this Agreement. (h) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to the then scheduled Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. In the event that this Agreement is terminated pursuant to the terms thereofhereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 120 days after the expiration twenty-four (24) hours of such put rightstermination), irrevocably and unconditionally terminate the Borrower Offer, shall apply the portion not acquire any shares of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower Company Common Stock pursuant to the Administrative Agent certifying as Offer and shall cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the use of such funds and that such use is permitted under this Sectionregistered holders thereof.

Tender Offer. Within ten (a10) The Borrower will use its best efforts to consummate the Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which the Tender Offer may be extended Business Days after delivery by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion Parent of the Tender Offer TransactionsElection (such ten Business Day period, the "Tender Offer Launch Period"). , Sub may commence (bwithin the meaning of Rule 14d-2(a) As of the Fourth Restatement Effective DateExchange Act) a tender offer for all, the Borrower shall deposit the Initial Second Priority Proceeds (but not less the portion thereof to be usedthan all, together with the proceeds of the Tranche B Term Loans and outstanding Common Stock at a purchase price per share of no less than $24.75, net to the Tranche B-1 Term Loans, to make seller in cash (the payments provided for in Section 5.01(f"Offer")) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account . The Offer shall be available open for a period of twenty (20) consecutive Business Days and shall expire at 12:00 midnight (12:00 A.M.), Eastern time, immediately following the twentieth Business Day of such period and may be extended only to be withdrawn at the request extent approved by two-thirds of the Borrower Continuing Directors or to the Administrative Agent solely (but extent required by Law. The obligation of Sub to purchase and pay for no other purpose) shares of Common Stock tendered pursuant to the Offer shall be subject only to (i) to purchase the Holding Company Convertible Notes pursuant to conditions that (A) there shall not have occurred, after the consummation date of delivery of the Tender Offer Election, a Company Material Adverse Effect, (B) the Company's board of directors shall have approved Sub's purchase of shares of Common Stock pursuant to the Offer for purposes of Section 23B.19.040 of the WBCA and shall have amended the Rights Agreement to render the Rights Agreement inapplicable to the Offer and the Second Step Merger (provided that the condition in this clause (B) shall apply only if Parent and Sub have not materially breached this Agreement), (C) there shall be no Restraint enjoining or otherwise prohibiting consummation of the Offer and (D) any applicable waiting period under the HSR Act shall have expired and (ii) if any Holding Company Convertible Notes remain outstanding after consummation the non waivable condition that a number of shares of Common Stock representing not less than two thirds of the Tender shares of Common Stock then outstanding on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Unless previously approved by each of the Continuing Directors in writing, no change in the Offer may be made, including any change (I) which decreases the price per share of Common Stock payable in the Offer, (AII) which changes the form of consideration to repurchasebe paid in the Offer, redeem(III) which reduces the maximum number of shares of Common Stock to be purchased in the Offer or the Minimum Condition, defease, retire (IV) which imposes conditions to the Offer in addition to those described above or acquire for value or pay the principal of (V) which amends any other term of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions Offer in a manner adverse to the Holding Company holders of the Common Stock. Sub shall, and Parent shall cause Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable but in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes no event later than three (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A3) following Business Days after the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after Offer. Immediately upon the expiration of such put rightsthe Tender Offer Launch Period, in the Borrower shall apply event Sub has not commenced the portion Offer within the Tender Offer Launch Period, Sub's right to commence a tender offer with respect to securities of the balance held in Company pursuant to this Section 8.3(b) shall terminate. Parent shall use reasonable best efforts to cause the Initial Second Priority Debt Proceeds Collateral Account that it does not require Offer to satisfy any such remaining put rights be consummated within the thirty (or, upon expiration of all such put rights, the entire remaining balance held therein30) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any Business Days immediately after commencement of the Other Debt and/or Offer (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii"Offer Completion Period"); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Section.

Tender Offer. (a) Not less than ten (10) days after the execution and delivery of this Agreement, the Buyer and Merger Sub shall commence a tender offer (the “Tender Offer”) pursuant to Rule 13e of the Exchange Act for the Subordinated Notes of the Company. The Borrower will Company shall use its best commercially reasonable efforts to consummate assist Buyer and Merger Sub in connection with the preparation of all filings, mailings or other submissions to be made in connection with the Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5Offer. The Company, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, Buyer and Merger Sub shall mutually agree upon the consummation thereofterms, the Borrower shall promptly notify in writing the Administrative Agent of the completion conditions and structure of the Tender Offer Transactions(which shall also include the elimination of substantially all negative covenants in the Subordinated Notes) provided that each party agrees not to unreasonably withhold its consent to such terms (including price), conditions and structures that are advised by the investment banking firm managing such tender to be customary for tenders of this type (as market conditions exist as of the date of this Agreement); provided that notwithstanding the foregoing, consent to terms, conditions and structures which are no less favorable to the holders of the Subordinated Notes than those recommended by such investment banking firm, cannot be withheld by a party, if the other party agrees to otherwise bear the cost of such term, condition or structure. The Tender Offer shall not be consummated nor shall any amounts be payable to the holders of the Subordinated Notes in the event this Agreement is terminated pursuant to Section 9.01. Except as otherwise provided herein, all premiums and interest accruals related to the Tender Offer, and all costs, fees and expenses incurred in connection with the Tender Offer or payments made in connection therewith, including payments made to the investment banking firm managing such tender, and legal and accounting fees and expenses incurred in connection therewith, shall be paid by the Company. (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, If at any time after prior to the Fourth Restatement Effective DateClosing any information relating to the Company or any Subsidiary, so long as no Default shall have occurred and or any of its Affiliates, officers, directors or employees should be continuingdiscovered by Buyer, Merger Sub, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall Company or any Subsidiary of a type which should be available to be withdrawn at the request of the Borrower set forth in an amendment or supplement to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation documents filed or mailed in respect of the Tender Offer and (ii) if so that such documents would not include any Holding Company Convertible Notes remain outstanding after consummation misstatement of the Tender Offer, (A) a material fact or omit to repurchase, redeem, defease, retire or acquire for value or pay the principal of state any of the remaining Holding Company Convertible Notes or (B) material fact necessary to make payment of cash dividends or distributions the statements therein not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the Holding Company in extent required by law, rules or regulations, an amount sufficient appropriate amendment or supplement describing such information shall promptly be prepared by Buyer and Merger Sub, and, if required, filed with the SEC and/or disseminated to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionSubordinated Notes.

Tender Offer. After the date hereof, Parent shall cause Merger Sub to make the Tender Offer, upon the terms and subject to the conditions set forth in this Agreement. (ai) The Borrower will use its best efforts As promptly as reasonably practicable after the date hereof, but in no event later than ten (10) business days after the initial public announcement of Parent's intention to consummate commence the Tender Offer, Merger Sub shall commence the Tender Offer in accordance with respect to all the rules and regulations of the Holding Company Convertible Notes Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to accept for payment, and pay for, any shares of Common Stock tendered thereunder no later than November 5, 2009 (or such later date pursuant to which the Tender Offer may shall be extended subject to (A) the condition (the "Minimum Condition") that at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned subsidiaries shall constitute a majority of the Borrower in good faith) then outstanding Shares on a fully diluted basis (andincluding, without limitation, all Shares issuable upon the consummation thereofconversion of any convertible securities or upon the exercise of any options, the Borrower shall promptly notify warrants or rights, excluding, however, any securities not convertible or exercisable on or prior to July 31, 2001 or which have an effective conversion or exercise price in writing the Administrative Agent excess of the completion Per Share Amount immediately prior to the expiration of the Tender Offer Transactions). (bOffer) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred been validly tendered and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be not withdrawn at the request of the Borrower prior to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation expiration of the Tender Offer and (B) the satisfaction or waiver of each of the other conditions set forth in Annex A hereto (together with the Minimum Condition, the "Tender Offer Conditions"). (ii) Merger Sub expressly reserves the right to waive any of the Tender Offer Conditions, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Tender Offer; provided, however, that no change may be made which decreases the Per Share Amount, waives the Minimum Condition, reduces the maximum number of Shares to be purchased in the Tender Offer or imposes conditions to the Tender Offer in addition to those set forth in Annex A hereto. Notwithstanding the foregoing, Merger Sub may, without the consent of Company, (A) extend the Tender Offer, if at the scheduled or extended expiration date of the Tender Offer (which scheduled expiration date shall be twenty (20) business days following the commencement of the Tender Offer) any Holding Company Convertible Notes remain of the Tender Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (B) extend the Tender Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Tender Offer or any period required by applicable law, or (C) extend the Tender Offer beyond the initial expiration date to include a "Subsequent Offering Period" as such term is defined in Rule 14d-11 of the rules and regulations of the SEC if on such expiration date there shall have been tendered more than a sufficient number of Shares to satisfy the Minimum Condition but less than 90% of the outstanding after consummation Shares; provided however, that Merger Sub may not extend the Tender Offer beyond July 31, 2001 without the consent of Company. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Tender Offer. Subject to the terms and conditions of the Tender Offer and this Agreement, Merger Sub shall accept for payment, and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Tender Offer that Merger Sub becomes obligated to accept for payment and pay for, pursuant to the Tender Offer. If the payment equal to the Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Parent that such taxes either have been paid or are not applicable. (iii) On the date of commencement of the Tender Offer, (A) as determined pursuant to repurchase, redeem, defease, retire or acquire for value or pay the principal of any Rule 14d-2 of the remaining Holding Company Convertible Notes or rules and regulations of the SEC, Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (Btogether with all amendments and supplements thereto, the "Schedule TO") to make payment of cash dividends or distributions with respect to the Holding Company Tender Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included or incorporated by reference therein pursuant to which the Tender Offer shall be made, together with any supplements or amendments thereto, are referred to collectively, as the "Tender Offer Documents"). The Tender Offer Documents shall comply as to form in an amount sufficient to enable all material respects with the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration requirements of the put rights of Exchange Act (as defined herein) and the rules and regulations promulgated thereunder and the Tender Offer Documents, on the date first published, sent or given to the holders of shares of Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the Holding Company 3.00% Convertible Notes on May 15statements therein, 2010 and/or the holders in light of the Holding circumstances under which they were made, not misleading. Each of Parent, Merger Sub and Company 4.875% Convertible Notes on January 15, 2011 (but excluding agrees promptly to correct any other put rights thereunder), information provided by it for use in the Tender Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Merger Sub shall take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Tender Offer Documents as so corrected to be disseminated to holders of Common Stock, in each case as and to the extent required by applicable federal securities laws. Company and its counsel shall be given reasonable opportunity to review and comment upon the Tender Offer Documents prior to their filing with the SEC or dissemination to the holders of Common Stock. Merger Sub shall provide Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Tender Offer Documents promptly after the receipt of such comments. (i) The Company hereby approves of and consents to the Tender Offer and represents that (x) the Board of Directors of the Company, at a meeting duly called and held on May 3, 2001, has (A) determined that this Agreement and the transactions contemplated hereby, including each of the Tender Offer and the Merger (collectively, the "Transactions"), are fair to, and in the best interests of, the holders do not exercise such put rights of Shares, (B) approved, adopted and declared advisable this Agreement and the Transactions and (C) resolved to recommend that the holders of Shares accept the Tender Offer and tender their Shares pursuant to the terms thereofTender Offer, within 120 days after and, if such approval is required under the expiration of such put rightsDGCL in connection with this Agreement and the Merger, approve and adopt this Agreement and the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (orMerger, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) AAI has delivered to prepay the Tranche B Term Loans and (if any) Board of Directors of the Incremental Loans Company its opinion referred to in Section 3.18. The Company hereby consents to the inclusion in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer Tender Offer Documents of the Borrower recommendation of the Board of Directors of the Company described in the first sentence of this paragraph, and the Company shall not withdraw or modify such recommendation in any manner adverse to the Administrative Agent certifying Merger Sub or Parent except as to the use of such funds and that such use is permitted under this Section.provided in

Tender Offer. (ai) The Borrower will use its best efforts to consummate the Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower Agent shall promptly notify in writing the Administrative Agent of the completion have received true copies of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans Documents and the Tranche B-1 Term LoansMerger Agreement, to make certified by the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request Secretary or an Assistant Secretary of the Borrower to (A) as being true and correct copies of such documents, (B) as having been duly authorized by the Administrative Board of Directors of the Credit Parties party thereto, and (C) as having been duly executed and delivered by the Credit Parties party thereto; (ii) The Tender Offer shall have been consummated concurrently with the making of the first Term Borrowing in accordance with the Tender Offer Documents and the Merger Agreement and without any modification thereto or waiver of any term or condition thereof; (iii) Acquisition Co. shall have acquired more than 50% (on a fully diluted basis) of the common stock of the Target in accordance with the terms of the Tender Offer and in accordance with all material applicable Legal Requirements; (iv) The Agent solely (but for no other purpose) (i) to purchase shall be satisfied that the Holding Company Convertible Notes sole right of the shareholders of Target who do not tender their shares pursuant to the Tender Offer shall be to receive a cash payment of $15.00 per share pursuant to the Merger, subject, however, to shareholders' rights under law, including appraisal and dissenters' rights; (v) The consummation of the Tender Offer and the Merger shall not violate or cause a default under any material applicable law, statute, rule, or regulation or any material agreement or right of the Borrower, the Target, or any of their Subsidiaries; (iivi) if any Holding Company Convertible Notes remain outstanding after consummation The respective boards of directors of the Target and the Borrower and its Subsidiaries shall not have withdrawn, modified or terminated their approval of the Tender Offer, (A) to repurchasethe Merger Agreement, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes transactions contemplated thereby; (vii) No event or (B) to make payment condition shall have occurred since the date of cash dividends or distributions the most recent financial statements furnished to the Holding Company Agent for the Borrower and its Subsidiaries that could reasonably be expected to result in an amount sufficient to enable a Material Adverse Change; (viii) The Agent and the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration Banks shall have received a copy of the put rights "fairness" opinion delivered by Bear, Xxxxxxx & Co., Inc. to the board of directors of the holders Target and such letter shall remain in full force and effect without modification or withdrawal; (ix) The Agent's and the Banks' financing of the Holding Company 3.00% Convertible Notes Tender Offer and the security arrangements in connection therewith shall not result in any violation of Regulations T, U, or X as in effect on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration date of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) financing; (x) so long Any and all consents required by reason of the Tender Offer as no Default of the date of the funding of the initial Advance shall have occurred been duly obtained, all applicable waiting periods shall have expired without any action being taken by any authority that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Tender Offer, and all material licenses, permits, and the like shall remain in full force and effect after giving effect to the Tender Offer; (xi) The Agent shall be continuing satisfied that the Tender Offer and the Merger can be consummated without triggering any "poison pill," "shark repellant," or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value similar anti-takeover device and without any adverse effect from any applicable anti-takeover statutes and that the activation of and payments under any retention policies of the Other Debt and/or Target and its Subsidiaries will not exceed $10,000,000.00 as of the Effective Date; (yxii) to prepay the Tranche B Term Loans and (if any) the Incremental Loans No material adverse change in the order specified in Section 2.09(b)(iiibusiness, condition (financial or otherwise), or results of operations of the Target and its Subsidiaries, taken as a whole, since December 31, 1997 shall have occurred; and and (Bxiii) prior to any request for withdrawal The Agent shall have received certified copies of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer pro forma financial statements of the Borrower showing the effect of the Tender Offer and the Merger, and the Borrower's ownership structure, management, and pro forma capital structure after giving effect to the Administrative Agent certifying as Tender Offer and the Merger shall be satisfactory to the use of such funds Agent and that such use is permitted under this Sectionthe Banks.

Tender Offer. (a) As promptly as practicable, but in no event later than five business days after the public announcement of the execution of this Agreement, Merger Sub will, and Parent will cause Merger Sub to, offer to purchase (the "OFFER") each outstanding share of Common Stock, $.10 par value (the "COMMON STOCK"), of the Company, including the associated Company Right (as defined in Section 3.06) (together with the Company Right, "COMPANY STOCK"), tendered pursuant to the Offer at a price of $5.40 per share, net to the seller in cash. The Borrower will use its best efforts obligations of Merger Sub and Parent to consummate the Tender Offer and to accept for payment and purchase the Company Stock tendered in the Offer will be subject only to the conditions set forth in Schedule 1.01(a) (Offer Conditions) (the "OFFER CONDITIONS"). The expiration date of the Offer shall be twenty (20) business days after commencement. Parent and Merger Sub agree that if all of the Offer Conditions are not satisfied on such initial expiration date then, provided that Parent determines that all Offer Conditions are reasonably capable of being satisfied and subject to Securities and Exchange Commission (the "SEC") rules with respect to extension of time periods, Merger Sub may extend the Offer from time to time until all Offer Conditions have been satisfied or waived. Parent and Merger Sub agree that upon the expiration date of the Holding Company Convertible Notes tendered thereunder no later than November 5Offer, 2009 (or such later date to which as the Tender Offer same may be extended by in accordance with the Borrower immediately preceding sentence, if all Offer Conditions have been satisfied, Merger Sub shall accept the shares of Company Stock properly tendered for purchase, subject to the right to extend the Offer not more than ten (10) business days in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent aggregate if less than 90% of the completion Company Stock have been properly tendered, such 90% to be calculated after giving effect to the conversion of any securities convertible into Common Stock, and the Tender Offer Transactions)exercise of any options, warrants or other rights to acquire Common Stock. (b) As On the date of the Fourth Restatement Effective Datecommencement of the Offer, Merger Sub and Parent will file with the SEC their Tender Offer Statement on Schedule 14D-1 (together with all supplements or amendments thereto, and including all exhibits, the Borrower "OFFER DOCUMENTS"). Merger Sub and Parent will give the Company and its counsel a reasonable opportunity to review and comment upon the Offer Documents prior to their being filed with the SEC or disseminated to the Company's stockholders. Parent and Merger Sub agree that the Offer Documents shall deposit comply as to form in all material respects with the Initial Second Priority Proceeds Securities Exchange Act of 1934, as amended (less the portion thereof "EXCHANGE ACT"), and the rules and regulations promulgated thereunder, and the Offer Documents, on the date filed with the SEC and on the date first published, sent, or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, stated therein or necessary in order to make the payments statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub, and the Company agrees promptly to correct any information provided by it for use in Section 5.01(fthe Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub, or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. (c) As promptly as practicable, but in no event later than the date on which Parent shall have notified the Company that the Offer Documents initially are to be filed with the SEC, the Company will file its Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all supplements or amendments thereto, and including all exhibits, ("SCHEDULE 14D-9"), which shall include a recommendation by the Company's Board of Directors that the Company's stockholders accept the Offer and tender their Company Stock pursuant to the Offer. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent, or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit 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 were made, not misleading, except that no representation or warranty is made by the Company with respect to information supplied by Parent or Merger Sub in writing specifically for inclusion in the Schedule 14D-9. Each of the Company, Parent, and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to stockholders of the Company. The Company agrees to provide Parent and its counsel any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company's Board of Directors has resolved to recommend that the Company's stockholders accept the Offer and tender their Company Stock pursuant to the Offer and has received an opinion from Dain Xxxxxxxx Xxxxxxx that, as of the date of such opinion, the consideration to be received by the stockholders of the Company pursuant to the Offer and the Merger is fair to such stockholders from a financial point of view. In addition, the Company shall cause its transfer agent to furnish Parent and Merger Sub with mailing labels, security position listings and any available listings or computer files containing the names and addresses of record holders of the Common Stock or the Company Stock as of a recent date, and shall furnish to Parent and Merger Sub such information and assistance as the Parent or Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. (d) directly into If requested by Parent or Merger Sub, the Initial Second Priority Debt Proceeds Collateral AccountCompany will, promptly following the purchase by Merger Sub pursuant to the Offer of that number of shares of Company Stock which, when aggregated with the shares of Company Stock then owned by Parent and any of its affiliates, represents at least a majority of the shares of Company Stock then outstanding on a fully diluted basis, take all actions necessary to cause persons designated by Merger Sub to become directors of the Company so that the total number of directors so designated equals the product, rounded up to the next whole number, of (i) the total number of directors of the Company multiplied by (ii) the ratio of the number of shares of Company Stock beneficially owned by Merger Sub or its affiliates at the time of such purchase over the number of shares of Company Stock then outstanding. In furtherance thereof, the Company will take whatever action is necessary, including but not limited to amending the Company's bylaws, to increase the size of its Board of Directors, or use reasonable efforts to secure the resignation of directors, or both, as is necessary to permit that number of Merger Sub's designees to be elected to the Company's Board of Directors; provided that, prior to the Effective Time, the Company's Board of Directors will always have at least two members who are not officers, designees, stockholders, or affiliates of Merger Sub ("INDEPENDENT DIRECTORS"). All of the Independent Directors will be individuals who are currently directors of the Company, except to the extent that no such individuals wish to be directors. The Company's obligations to appoint designees to its Board of Directors will be subject to Section 14(f) of the Exchange Act, and Rule 14f-1 promulgated thereunder. Parent and Merger Sub will supply to the Company and will be solely responsible for any time after the Fourth Restatement Effective Dateinformation with respect to either of them and their nominees, so long as no Default officers, directors, and affiliates required by Section 14(f) and Rule 14f-1. The Company will promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.01 and (provided that Merger Sub shall have occurred and be continuing, provided to the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available Company on a timely basis all information required to be withdrawn at included in the request Information Statement with respect to Merger Sub's designees) will include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1. (e) Following the election or appointment of Merger Sub's designees pursuant to Section 1.01(d), any amendment to this Agreement, any termination of this Agreement by the Company, any extension by the Company of the Borrower to time for the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal performance of any of the remaining Holding Company Convertible Notes obligations of Merger Sub or (B) Parent under this Agreement, any recommendation to make payment of cash dividends stockholders or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value any modification or pay the principal withdrawal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rightsrecommendation, the Borrower shall apply retention of counsel and other advisors in connection with the portion transactions contemplated hereby, or any waiver of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) Company's rights under this Agreement will require the concurrence of a majority of the Independent Directors, unless no individuals who are currently directors of the Company wish to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Accountbe directors. In addition, the Borrower Independent Directors shall provide a certificate signed by a senior officer have the right to retain, at the expense of the Borrower Company, one separate firm of counsel to represent them in connection with the Administrative Agent certifying transactions contemplated hereby. (f) The parties will cooperate with each other, including by furnishing any necessary information and making any filings required by applicable law, to ensure that the matters contemplated by this Section 1.01 are consummated as to the use of such funds and that such use is permitted under this Sectionpromptly as practicable.

Tender Offer. (a) The Borrower will use its best efforts On November 2, 2010, Xxxxxx International Inc. launched a tender offer and consent solicitation to consummate the Tender Offer with respect to purchase any and all of its outstanding 9.25% Senior Notes due 2013 (“2013 Notes”), referred to as the Holding Company Convertible “Tender Offer.” The settlement date in respect of any 2013 Notes that are validly tendered thereunder no later than and not withdrawn at or prior to 5:00 p.m., New York City time, on November 516, 2009 2010 (the “Consent Date”) is expected to be on or such later about November 17, 2010 and the settlement date to which in respect of any 2013 Notes that are validly tendered and not withdrawn after the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Consent Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, but at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower or prior to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation expiration of the Tender Offer, (A) is expected to repurchasebe on or about December 2, 2010. As at the date of the Tender Offer, there were $310 million in aggregate principal amount of 2013 Senior Notes outstanding. If less than all of the 2013 Senior Notes are purchased in the Tender Offer, Xxxxxx International Inc. may redeem, defease, retire defease or acquire for value or pay satisfy and discharge any remaining outstanding 2013 Notes at its own discretion in accordance with the principal of any terms of the remaining Holding Company Convertible Notes 2013 Notes. The Tender Offer is subject to, among other things, the completion of this offering. Delivery of the notes will be made to investors on or about November 17, 2010, which will be the fourth business day following the date of this pricing term sheet (B) such settlement being referred to make payment as T+4). Under Rule 15c6-1 under the Securities Exchange Act of cash dividends or distributions 1934, trades in the secondary market are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes prior to the Holding Company delivery of the notes hereunder will be required, by virtue of the fact that the notes initially settle in T+4, to specify an amount sufficient to enable alternate settlement arrangement at the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal time of any such Holding Company Convertible Notes (provided that such payments are applied directly trade to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration prevent a failed settlement. Purchasers of the put rights notes who wish to trade the notes prior to their date of delivery hereunder should consult their advisors. This communication is for informational purposes only and does not constitute an offer to sell, or a solicitation of an offer to buy, any security, nor shall there be any sale of the holders notes in any state or jurisdiction in which such offer, solicitation or sale would be unlawful. No offer to buy securities described herein can be accepted, and no part of the Holding Company 3.00% Convertible Notes on May 15purchase price thereof can be received, 2010 and/or unless the holders of person making such investment decision has received and reviewed the Holding Company 4.875% Convertible Notes on January 15information contained in the Preliminary Offering Memorandum, 2011 including the documents incorporated by reference therein (but excluding any other put rights thereunder), except to the extent that any such holders do superseded by information in the Preliminary Offering Memorandum), in making their investment decisions. This communication is not exercise such put rights pursuant intended to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion be a confirmation as required under Rule 10b-10 of the balance held Securities Exchange Act of 1934. A formal confirmation will be delivered to you separately. The notes will be offered and sold to qualified institutional buyers in the Initial Second Priority Debt Proceeds Collateral Account that it does United States in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Act”), and to persons in offshore transactions in reliance on Regulation S under the Act. The notes have not require been registered under the Securities Act or any state securities laws, and may not be offered or sold in the United States or to satisfy any such remaining put rights (or, upon expiration of all such put rights, U.S. persons absent registration or an applicable exemption from the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any registration requirements. C-1 The Company is a corporation validly existing under the laws of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal State of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionWashington.

Tender Offer. (aA) The Borrower will use In case any tender offer made by the Company or any of its best efforts Subsidiaries for Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall involve the payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to consummate the Tender Offer Trustee thereof) of any other consideration) that, together with the aggregate amount of: (i) any cash and the fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers' Certificate delivered to the Trustee) of any other consideration payable in respect of any other tender offers by the Company or any Subsidiary of the Company for Common Stock consummated within the 12 months preceding the date of the Expiration Date (as defined below) and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made; and (ii) all cash distributions to all or substantially all holders of its Common Stock made within the 12 months preceding the Expiration Date and in respect of which no Conversion Price adjustment pursuant to this Section 4.6 has been made, exceeds an amount equal to 10.0% of the Holding Company Convertible Notes product of the Current Market Price per share of Common Stock (as determined in accordance with subsection (b) of this Section 4.6) as of the last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time") multiplied by the number of shares of Common Stock outstanding (including tendered thereunder no later than November 5shares but excluding any shares held in the treasury of the Company) at the Expiration Time, 2009 (or such later date then, immediately prior to the opening of business on the day after the Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to close of business on the Expiration Date by a fraction of which the Tender Offer may numerator shall be extended the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Borrower Current Market Price per share of the Common Stock (as determined in good faithaccordance with subsection (b) of this Section 4.6) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (andx) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (b) of this Section 4.6) on the Trading Day next succeeding the Expiration Date, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the consummation thereofnumber of shares actually purchased. If the application of this Section 4.6(a)(5) to any tender offer would result in an increase in the Conversion Price, the Borrower no adjustment shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactionsbe made for such tender offer under this Section 4.6(a)(5). (bB) As For purposes of the Fourth Restatement Effective Datethis Section 4.6(a)(5), the Borrower term "tender offer" shall deposit mean and include both tender offers and exchange offers, all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds purchase of the Tranche B Term Loans shares in tender offers and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request acquisition of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes shares pursuant to the consummation of the Tender Offer exchange offers, and all references to "tendered shares" (iiand all similar references) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company shall mean and include shares tendered in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred both tender offers and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionexchange offers.

Tender Offer. (a) The Borrower Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in paragraphs (a) through (g) of Annex A hereto shall have occurred or be existing and the other conditions to the Offer specified in Annex A shall have been satisfied (together with such events, the "Offer Conditions"), as soon as reasonably practicable, and in any event within five Business Days after public announcement of this Agreement, Merger Sub will use its best efforts to consummate commence a tender offer (the Tender Offer with respect to "OFFER") for all of the Holding Company Convertible Notes outstanding Shares (as defined below) at a price of $25.50 per Share in cash, net to the seller, and, subject only to and in accordance with the terms and conditions of the Offer, accept for payment Shares that are validly tendered thereunder no and not withdrawn immediately following (unless the Offer shall have been extended in accordance with the terms hereof) the later than November 5, 2009 of (or such later i) the date to on which the Tender waiting period under the HSR Act has expired or has been terminated and (ii) the twentieth Business Day after the commencement of the Offer; PROVIDED, HOWEVER, and notwithstanding anything to the contrary in the foregoing, it is understood and agreed that (A) if any of the Offer may be extended by Conditions specified in paragraphs (a) through (h) of Annex A exists at the Borrower in good faith) (and, upon time of the consummation thereofscheduled expiration date of the Offer or if, the Borrower shall promptly notify in writing applicable waiting periods under the Administrative Agent HSR Act have not expired or been earlier terminated, Merger Sub may extend and reextend the Offer on one or more occasions for periods of time (not to exceed ten Business Days for any particular extension) so that the expiration date of the completion Offer (as so extended) is as soon as reasonably practicable or advisable after the date on which the particular Offer Condition no longer exists, and (B) Merger Sub may extend and reextend the Offer on one or more occasions for periods of time (not to exceed ten Business Days for any particular extension) for an aggregate period not to exceed twenty Business Days if on such expiration date there shall not have been validly tendered and not withdrawn at least the number of Shares necessary to permit the Merger to be effected without a meeting of the Tender Offer Transactions). (b) As Company's stockholders, and; PROVIDED, FURTHER, that all extensions of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds Offer made by Merger Sub (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn other than at the request of the Borrower Company) shall not extend the Offer beyond September 5, 1999. Parent and Merger Sub agree that until September 5, 1999 Merger Sub shall from time to time extend the Offer at such times as the Company may request for five Business Days for each extension, but shall in no event extend the Offer beyond September 5, 1999. Merger Sub shall not, without the prior written consent of the Company, decrease the price per Share offered in the Offer, change the form of consideration offered or payable in the Offer, decrease the numbers of Shares sought in the Offer, change the conditions to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant Offer, impose additional conditions to the consummation Offer, amend any term of the Tender Offer and (ii) if in any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) manner adverse to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of Shares or waive the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 Minimum Conditions (but excluding any other put rights thereunderas defined in Annex A), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Section.

Tender Offer. (a1) Provided that this Agreement shall not have been terminated in accordance with Section J, as promptly as practicable and, in any event, within five (5) Business Days of the date of this Agreement, the independent Special Committee of the Board of Directors of the Company shall cause the Company to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Tender Offer. The Borrower will use its best efforts Tender Offer shall be made on the terms and subject to consummate the conditions set forth in this Section E. The date on which the Company commences the Tender Offer is referred to herein as the “Offer Commencement Date.” The initial expiration date of the Tender Offer shall be 5:00 p.m., New York City Time, on the date that is at least twenty (20) Business Days following the Offer Commencement Date (the “Initial Expiration Date” and together with any expiration time and date established in connection with an extension of the Tender Offer as so extended pursuant to the terms and conditions set forth herein, the “Expiration Date”). The Tender Offer Price per share to be paid for each share validly tendered and not withdrawn shall be $1.00, net to the tendering holder in cash but subject to reduction for any required withholding of taxes (or any higher price offered and paid pursuant to the Tender Offer, subject to the mutual agreement of the Company and the Purchaser). (2) Subject to the satisfaction or waiver of the conditions set forth in this Section E and compliance by the parties with their respective obligations under Section A, as soon as practicable after the Expiration Date, the Company shall, pursuant to the Tender Offer, accept for payment and pay for shares of Common Stock validly tendered and not properly withdrawn pursuant to the Tender Offer (the date of such acceptance for payment, the “Acceptance Date”). Each share of Common Stock accepted shall be purchased by the Company for cash at the Tender Offer Price. The obligations of the Company to accept for payment and to pay for any shares of Common Stock shall be subject to the conditions that (i) the purchase and sale of the Securities shall become effective simultaneously with the acceptance of the shares of Common Stock on the Acceptance Date and (ii) this Agreement shall not have been terminated in accordance with Section J. (3) The Company and the Purchaser may mutually agree to have the Company extend the Tender Offer for additional successive periods of up to twenty (20) Business Days per extension (with the length of such periods to be mutually agreed by the Company and the Purchaser). In addition, the Company shall extend the Tender Offer from time to time for any period required by any rule, regulation, interpretation or position of the SEC or the staff of the SEC applicable to the Tender Offer. Other than as specifically provided in this Section E(3), without the prior written consent of the Purchaser, the Company shall not (i) terminate or withdraw the Tender Offer or (ii) amend, change or waive any term of condition of the Tender Offer, including, without limitation, by way of any increase or decrease in the Tender Offer Price, any change in the form of consideration payable in the Tender Offer, any decrease the number of shares of Common Stock sought to be purchased in the Tender Offer, any change or waiver of the Minimum Share Condition, (iii) reduce or extend the time period during which the Tender Offer shall remain open (except for any extension required or permitted hereunder or required under applicable law) or (iv) take any action that could unreasonably delay consummation of the Tender Offer. (4) In the event this Agreement is terminated pursuant to Section J prior to the Acceptance Time, the Company shall promptly terminate the Tender Offer without accepting any shares of Common Stock previously tendered and shall promptly return, and shall cause the transfer agent (or any other agent acting on behalf of the Company) to promptly return, all tendered shares of Common Stock to the registered holders thereof. (5) On the Offer Commencement Date, the Company shall file with the SEC, pursuant to and in accordance with Rule 13e-4 and Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Tender Offer (together with all amendments and supplements thereto, the “Schedule TO”), which shall contain an offer to purchase (the “Offer to Purchase”) and a related letter of transmittal, summary advertisement and other related documents ancillary to the Holding Company Convertible Notes tendered thereunder no later than November 5Tender Offer, 2009 in each case reflecting the terms and conditions of this Agreement as they relate to the Tender Offer (or such later date Schedule TO and the documents included therein pursuant to which the Tender Offer may will be extended by the Borrower in good faith) (andmade, upon the consummation thereoftogether with any supplements or amendments thereto, the Borrower “Tender Offer Documents”) and shall promptly notify in writing the Administrative Agent of the completion of cause the Tender Offer Transactions). (b) As Documents to be disseminated to holders of shares of Common Stock in accordance with the applicable requirements of the Fourth Restatement Effective Date, the Borrower Exchange Act. The Purchaser shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower promptly furnish to the Administrative Agent solely (but Company all information concerning the Purchaser that may be required by applicable law or reasonably requested by the Company for no other purpose) inclusion in the Tender Offer Documents. The Company agrees (i) to purchase use its reasonable best efforts to ensure that the Holding Schedule TO and the other Tender Offer Documents as filed by it with the SEC will comply in all material respects with the applicable provisions of the Exchange Act and (ii) that the information in the Schedule TO and the other Tender Offer Documents will not contain any untrue statement of a material fact or omit 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 were made, not misleading. The Purchaser agrees that the information in the Schedule TO and the other Tender Offer Documents that was supplied by it to the Company Convertible Notes for inclusion therein will not contain any untrue statement of a material fact or omit 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 were made, not misleading. The Company agrees to use its reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Tender Offer Documents or the Tender Offer, and each of the Company and the Purchaser agrees to promptly correct any information provided by it for use in the Tender Offer Documents if and to the extent that such information shall become false or misleading in any material respect or as otherwise required by applicable law. The Company shall take all steps necessary to amend or supplement the Schedule TO and the other Tender Offer Documents and to cause the Tender Offer Documents, as so amended or supplemented, to be filed with the SEC and to be disseminated to the holders of Common Stock, in each case as and to the extent required by applicable law. The Purchaser and its counsel shall be given reasonable opportunity to review and comment on the Schedule TO and the other Tender Offer Documents (including any amendments or supplements thereto) before they are filed with the SEC or disseminated to holders of shares of Common Stock. The Company shall provide the Purchaser and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel receives from the SEC or its staff with respect to the Schedule TO and the other Tender Offer Documents promptly after the receipt of such comments and shall give the Purchaser and its counsel a reasonable opportunity to review and comment on any proposed written or oral responses to such comments. (6) On the Offer Commencement Date, to the extent required by Rule 13e-3 under the Exchange Act, the Company, the Purchaser and such affiliates of the Company and the Purchaser as may be required by applicable law shall file with the SEC, pursuant to and in accordance with Rule 13e-3 and Regulation M-A under the consummation Exchange Act, a joint Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the transactions contemplated by this Agreement, provided, however, that, at their option and subject to applicable law, the Company and the Purchaser may include the Schedule 13E-3 in the Schedule TO included in the Tender Offer Documents (the “Schedule 13E-3,” which may mean the Schedule 13E-3 that is included in the Schedule TO if that method of filing is chosen). Each of the Company and the Purchaser agrees (i) to use its reasonable best efforts to ensure that the Schedule 13E-3 as filed by them will comply in all material respects with the applicable provisions of the Exchange Act and (ii) that the information in the Schedule 13E-3 that was supplied by it for inclusion therein will not contain any untrue statement of a material fact or omit 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 were made, not misleading. Each of the Company and the Purchaser agrees to use its reasonable best efforts promptly to respond to any comments of the SEC or its staff with respect to the Schedule 13E-3 and promptly to correct any information provided by it for use in the Schedule 13E-3 if and to the extent that such information shall become false or misleading in any material respect or as otherwise required by applicable law. Each party shall take all steps necessary to amend or supplement its Schedule 13E-3 and to cause the Schedule 13E-3, as so amended or supplemented, to be filed with the SEC, in each case as and to the extent required by applicable law. Each of the Company and the Purchaser and its respective counsel shall be given reasonable opportunity to review and comment on each Schedule 13E-3 (including any amendments or supplements thereto) before it is filed with the SEC. Each of the Company and the Purchaser shall provide the other and its respective counsel with copies of any written comments, and shall inform them of any oral comments, the Company, the Purchaser or its respective counsel receives from the SEC or its staff with respect to the Schedule 13E-3 promptly after the receipt of such comments and shall give the other a reasonable opportunity to review and comment on any proposed written or oral responses to such comments. (7) The Board of Directors or the independent Special Committee of the Board of Directors of the Company shall recommend that the holders of Common Stock accept the Tender Offer and tender their shares pursuant thereto (iithe “Tender Offer Recommendation”) if any Holding Company Convertible Notes remain outstanding after consummation and shall cause the Tender Offer Recommendation to be included in the Tender Offer Documents. Neither the Board of Directors nor the independent Special Committee of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal Board of any Directors of the remaining Holding Company Convertible Notes shall withdraw, modify or (B) qualify the Tender Offer Recommendation in any manner or publicly propose to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionso.

Tender Offer. (a) The Borrower If an Initial Public Offering has not occurred by the Trigger Date and none of the Founders exercises its rights to request the consummation of an Exit Transaction in accordance with Section 2 and Annex A, then, each calendar year until the earlier of the consummation of an Initial Public Offering or the consummation of an Exit Transaction, the Company will, as soon as reasonably practicable following the expiration of the Trigger Date Exercise Period, deliver to each Member a notice (the “Tender Notice”) which will use include (i) an irrevocable offer by the Company to repurchase for cash, at Book Value, a number of Shares held by such Member (the “Reference Shares”) equal to the product of (a) the Tender Percentage and (b) the total number of Shares held by such Member and (ii) a proposed closing date for such proposed repurchase, provided that the Company will not be required to deliver the Tender Notice if the repurchase is in violation of the Bermuda Act or the Board determines, in its best efforts reasonable discretion, that the repurchase of Shares contemplated by the Tender Notice will have a negative impact on TP Re’s A.M. Best & Company financial strength rating. (b) Each Member may elect to consummate participate in the proposed tender offer identified in the Tender Notice (the “Tender Offer”) by giving written notice (the “Acceptance Notice”) to the Company within 20 days following the delivery of the Transfer Notice to such Member (such participating Member, a “Participating Member”), which notice shall state that such Member elects to exercise its rights to sell Shares under this Section 5 and shall state the maximum number of Shares sought to be sold by such Participating Member (which number may not exceed the number of Reference Shares). Each Member shall be deemed to have waived its right to sell in the Tender Offer if it fails to give notice within the prescribed time period, but such failure shall not affect his or her right to participate in any other tender offer in accordance with respect the terms of this Section 6. (c) If any Member elects not to all sell any of its Shares in the Tender Offer or does not deliver an Acceptance Notice within the time period specified in Section 6(b), then the Company shall offer to repurchase a number of Shares equal to such Member’s Reference Shares from the Participating Members in proportion to each such Participating Members’ Pro Rata Portion, in continuous reofferings until the earlier of (i) the repurchase by the Company of a number of Shares equal to the product of (a) the Tender Percentage and (b) the total number of Shares held by Members at the time of the Holding issuance of the Tender Notice or (ii) such time when no Participating Member elects to participate in any such reoffer. (d) Each Participating Member shall deliver to the Company Convertible Notes tendered thereunder at the closing of the Tender Offer certificates representing the Shares transferred by such Participating Member, duly endorsed for transfer or accompanied by stock powers duly executed, in either case executed in blank or in favor of the applicable purchaser against payment of the aggregate purchase price therefor by wire transfer of immediately available funds to an account to be designated in writing by such Participating Member. Each Participating Member shall receive consideration in the same form and per share amount after deduction of such Participating Member’s proportionate share of the related expenses. The fees and expenses incurred in connection with a sale under this Section 6 and for the benefit of all Participating Members (it being understood that costs incurred by or on behalf of a Participating Member for his, her or its sole benefit will not be considered to be for the benefit of all Participating Member), to the extent not paid or reimbursed by the Company, shall be shared by all the Participating Members on a pro rata basis, based on the consideration received by each Participating Member in respect of its Shares to be sold; provided that no later than November 5, 2009 Participating Member shall be obligated to make any out-of-pocket expenditure prior to the consummation of the transaction consummated pursuant to this Section 6 (or such later excluding de minimis expenditures). The proposed closing date to which of the Tender Offer may be extended by beyond the Borrower date described in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), Notice to the extent that any necessary to obtain required approvals of governmental entities and other required approvals and the Company and the Participating Members shall use their respective commercially reasonable efforts to obtain such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionapprovals.

Tender Offer. (a) The Borrower Provided that this Agree- ------------ ment shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, within five business days of the date hereof, Merger Sub will use its best efforts to consummate com- mence a tender offer (the Tender Offer with respect to "Offer") for all of the Holding Company Convertible Notes outstanding Shares that neither it nor Purchaser currently directly or indirectly owns at a price of $15.25 per Share in cash, net to the seller, subject to the conditions set forth in Annex A hereto. Subject to the terms and conditions of the Offer, Merger Sub will promptly pay for all Shares duly tendered thereunder no later than November 5, 2009 that it is obligated to purchase thereunder. The Company's Board of Directors and a majority of the Company's Independent Directors (or as defined below) shall recommend acceptance of the Offer to its stockholders in a Solicitation/Recommendation Statement on Schedule 14D-9 (as such later date to which the Tender Offer statement may be extended by the Borrower in good faith) (and, upon the consummation thereofamended or supplemented from time to time, the Borrower shall promptly notify in writing "Schedule 14D-9") to be filed with the Administrative Agent Securities and Exchange Commission (the "SEC") upon commencement of the completion Offer; provided, however, that if the -------- ------- Company's Board of Directors determines that its fiduciary duties require it to amend or withdraw its recommendation, such amendment or withdrawal shall not constitute a breach of this Agreement. Merger Sub will not without the prior written consent of the Tender Company decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought or change the conditions to the Offer. Merger Sub shall not terminate or withdraw the Offer Transactions)or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer set forth on Annex A hereto shall not have been satisfied or waived. (b) As of the Fourth Restatement Effective DatePurchaser and Merger Sub agree, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use Offer to Purchase and related Letter of such funds Transmittal (which together, as either of them may be amended or supplemented from time to time, constitute the "Offer Documents"), and the Company agrees, as to the Schedule 14D-9, that such use is permitted under this Sectiondocuments shall, in all material respects, comply with the requirements of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder and other applicable laws. The Company and its counsel, as to the Offer Documents, and Purchaser or Merger Sub and its counsel, as to the Schedule 14D-9, shall be given an opportunity to review such documents prior to their being filed with the SEC. (c) In connection with the Offer, the Company will cause its Transfer Agent to furnish promptly to Merger Sub a list, as of a recent date, of the record holders of Shares and their addresses, as well as mailing labels con- taining the names and addresses of all record holders of Shares and lists of security positions of Shares held in stock depositories. The Company will furnish Merger Sub with such additional information (including, but not limited to, updated lists of holders of Shares and their addresses, mailing labels and lists of security positions) and such other assistance as Purchaser or Merger Sub or their agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares.

Tender Offer. (a) The Borrower Company will use its best efforts to consummate commence the Tender Offer in conjunction with respect to all a solicitation (the "Consent Solicitation") of the Holding votes of the Noteholders to amend the terms of the Indenture dated as of April 1, 1997 (the "Indenture") to remove substantially all restrictive covenants therein and related defaults thereunder, whether such action is contemplated as part of a pre-packaged or pre-negotiated chapter 11 bankruptcy plan of reorganization (the "Plan") or Tender Offer, as soon as practicable following receipt of the Minimum Condition; provided, however, that such Tender Offer and Consent Solicitation will only be made in compliance with applicable securities laws; and provided further, however, that the Company Convertible Notes tendered thereunder no later than November 5, 2009 (or such later date shall not be obligated to which commence the Tender Offer may be extended or the Consent Solicitation if the Minimum Condition is not satisfied by the Borrower in good faith) (andclose of business on June 21, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion of the Tender Offer Transactions)2000. (b) As In the Tender Offer, the Company will offer Holders 17% of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds face amount of the Tranche B Term Loans and Notes they own, payable in cash on the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation closing date of the Tender Offer, which, if applicable, will coincide with the effective date of the confirmed Plan (Athe "Cash Plan"). If for any reason the Holders will not receive at least 17% of the face amount of the Notes they own in cash through the Tender Offer on or before November 15, 2000, the Consent Solicitation and the Plan will provide that Holders instead will receive 100% of the equity of the reorganized Company, subject to appropriate management incentives and warrants in connection with any exit financing to be agreed upon (the "Equity Plan"). (c) So long as this Letter Agreement shall remain in effect, each Holder hereby agrees to repurchaseforebear (and agrees to seek to cause the forbearance, redeem, defease, retire or acquire for value or pay including by giving all necessary instructions permitted in accordance with the principal Indenture to the trustee under the Indenture) from the exercise of any of rights or remedies it may have under the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchaseIndenture, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay applicable law or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior with respect to any request for withdrawal of funds by default in existence or arising under the Borrower from Indenture during the Initial Second Debt Priority Proceeds Collateral Account, period commencing on the Borrower shall provide a certificate signed by a senior officer of date hereof and ending on the Borrower to the Administrative Agent certifying as to the use of such funds and that such use date on which any chapter 11 bankruptcy case is permitted under this Sectioncommenced.

Tender Offer. 6.12.1. After the date hereof and prior to the Closing Date, Parent and Merger Sub may commence a tender offer and consent solicitation (athe “Tender Offer”) pursuant to the Exchange Act for the Senior Subordinated Notes. The Borrower will Company shall use its best commercially reasonable efforts to consummate assist the Buyer Parties in connection with the preparation of all filings, mailings or other submissions to be made in connection with the Tender Offer with respect to all of the Holding Company Convertible Notes tendered thereunder no later than November 5Offer. The terms, 2009 (or such later date to which the Tender Offer may be extended by the Borrower in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of the completion conditions and structure of the Tender Offer Transactions)(which shall also include the elimination of substantially all negative covenants in the Senior Subordinated Notes) shall be determined by the Buyer Parties following consultation with the Company; provided, that the Tender Offer shall not be conducted by or on behalf of any Target Company. The Tender Offer shall not be consummated nor shall any amounts be payable to the holders of the Senior Subordinated Notes in the event this Agreement is terminated pursuant to Section 10.1. Except as provided herein, all premiums and interest accruals related to the Tender Offer, and all costs, fees and expenses incurred in connection with the Tender Offer or payments made in connection therewith, including payments made to the investment banking firm managing the Tender Offer, and legal and accounting fees and expenses incurred in connection therewith, shall be paid by the Buyer Parties. In addition, the Buyer Parties shall indemnify and hold harmless the Company, its Subsidiaries and their respective Affiliates and representatives from and against any and all losses or liabilities suffered or incurred by them in connection with the Tender Offer, except to the extent that such losses or liabilities are the result of gross negligence or willful misconduct by the Target Companies or their representatives. (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, 6.12.2. If at any time after prior to the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuingClosing, the funds from Target Companies, Parent or the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower Buyer Parties discover information relating to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant Target Companies of a type that should be set forth in an amendment or supplement to the consummation documents filed or mailed in respect of the Tender Offer and (ii) if so that such documents would not include any Holding Company Convertible Notes remain outstanding after consummation misstatement of the Tender Offer, (A) a material fact or omit to repurchase, redeem, defease, retire or acquire for value or pay the principal of state any of the remaining Holding Company Convertible Notes or (B) material fact necessary to make payment of cash dividends the statements therein not misleading, the party that discovers such information shall promptly notify the other parties hereto and the Target Companies shall assist Parent and Merger Sub in promptly preparing an appropriate amendment or distributions supplement describing such information to the Holding Company in an amount sufficient extent required by applicable Legal Requirement, which amendment or supplement will be, if required, filed with the SEC and/or disseminated to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionSenior Subordinated Notes.

Tender Offer. (a) The Borrower will use Company acknowledges and agrees that, subject to the terms and conditions set forth in this Agreement, Parent may at its best efforts election cause Merger Sub to consummate commence a cash tender offer (as it may be amended from time to time as permitted under this Agreement, the Tender Offer with respect to all “Offer”) after the date hereof but in no event later than thirty (30) Business Days after the date hereof, within the meaning of the Holding Company Convertible Notes applicable rules and regulations of the SEC, to purchase any and all outstanding Shares at a price per Share equal to the Per Share Merger Consideration (the “Offer Price”). The consummation of the Offer, and the obligations of Merger Sub to accept for payment and pay for the Shares tendered thereunder no later than November 5pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the expiration of the Offer that number of Shares (excluding by guaranteed delivery), 2009 (or such later date to which the Tender Offer may be extended together with any Shares beneficially owned by the Borrower Shareholder and the Rollover Shareholders, which equals at least one (1) share more than fifty per cent (50%) of the total number of Shares issued and outstanding immediately prior to the expiration of the Offer (the “Minimum Tender Condition”); and (ii) the satisfaction, or waiver by Parent, of the other conditions set forth in good faith) Annex B (and, upon the consummation thereofcollectively, the Borrower shall promptly notify in writing “Offer Conditions”); provided, however, that Merger Sub may elect to accept for payment and pay for any Shares validly tendered pursuant to the Administrative Agent Offer and not properly withdrawn as of the completion of Expiration Date even if the Minimum Tender Offer Transactions)Condition has not been satisfied. (b) As The initial expiration date of the Fourth Restatement Effective Offer shall be the twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (such date being the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”). Notwithstanding the foregoing, if, on the initial Expiration Date or any subsequent Expiration Date, all of the Borrower Offer Conditions have not been satisfied or waived, then Merger Sub shall, and Parent shall deposit cause Merger Sub to, subject to the Initial Second Priority Proceeds rights of the parties under Section 8.01, extend (less and re-extend) the portion thereof Offer and its Expiration Date beyond the initial Expiration Date or any subsequent Expiration Date; provided that any such extension shall be in increments determined by Merger Sub in its sole discretion in accordance with applicable U.S. federal securities Laws. The Offer may not be terminated prior to its Expiration Date, unless this Agreement is validly terminated in accordance with Section 8.01. In no event shall Merger Sub extend the Offer beyond the date that is thirty (30) Business Days prior to the Termination Date without the prior written consent of the Company (acting through the Special Committee), which consent shall not be unreasonably withheld, conditioned or delayed. (c) Parent shall provide or cause to be usedprovided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. Merger Sub shall, together and Parent shall cause Merger Sub to, comply with the proceeds of obligations respecting prompt payment and announcement under the Tranche B Term Loans Exchange Act, and, without limiting the foregoing, Merger Sub shall (and the Tranche B-1 Term Loans, to make the payments provided Parent shall cause Merger Sub to) accept for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred payment and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be pay for all Shares validly tendered and not properly withdrawn at the request of the Borrower pursuant to the Administrative Agent solely (but for no other purpose) Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under U.S. federal securities Laws to purchase the Holding Company Convertible Notes accept for payment Shares tendered pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation the earliest date as of which each of the Tender Offer Conditions shall have been satisfied or waived. (d) Notwithstanding anything herein to the contrary, Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price (provided that if the Offer Price is increased the parties shall simultaneously amend this Agreement to increase the Per Share Merger Consideration to be equal to such increased Offer Price) and/or to modify the other terms of the Offer, except that, without the prior written consent of the Company (acting through the Special Committee), Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following: (i) reduce the Offer Price; (ii) increase the number of Shares specified in the Minimum Tender Condition; (iii) except as expressly provided in Section 6.04(b), extend or otherwise change the Expiration Date, except (A) to repurchaseas required by applicable Law (including for any period required by any rule, redeemregulation, defease, retire interpretation or acquire for value or pay the principal of any position of the remaining Holding Company Convertible Notes SEC or the staff thereof) or (B) in connection with an increase of the Offer Price; (iv) change the form of consideration payable in the Offer; (v) impose any condition to the Offer other than the Offer Conditions; or (vi) otherwise amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions. (e) As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (i) contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement, all information that would be required to be included in a Schedule 13E-3 filed by Parent and the Company, and such other information or documents as required by applicable Law (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, being referred to as the “Offer Documents”) and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to holders of Shares, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make payment the statements therein, in light of cash dividends the circumstances under which they were made, not misleading, except that no covenant is made by Parent or distributions Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the Holding extent necessary such that the Offer Documents do not contain an untrue statement of a material fact or omit 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. Each of Parent and Merger Sub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities Laws. The Company and its counsel shall be afforded a reasonable opportunity to review and comment upon the Offer Documents each time before they are filed with the SEC and/or disseminated to holders of Shares (and the Company and its counsel shall provide any comments thereon as soon as reasonably practicable, and Parent and Merger Sub shall give reasonable consideration to any comments made by the Company and its counsel). Parent and Merger Sub shall provide to the Company and its counsel copies of any written comments or other communications Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents, shall consult with the Company and its counsel prior to responding to any such comments or other communications, and shall provide the Company with copies of all written responses thereto of Parent or Merger Sub or their counsel. (f) In the event this Agreement is terminated pursuant to Section 8.01, Merger Sub shall promptly following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any additional Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering Shareholders. (g) The Offer Price shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Shares), reorganization, recapitalization or other like change with respect to the Shares effected by the Company in an amount sufficient accordance with the terms and conditions of this Agreement and occurring (or for which a record date is established) after the date hereof and prior to enable the Holding payment by Merger Sub for the Shares validly tendered and not properly withdrawn in connection with the Offer. (h) The Company to repurchaseBoard, redeem, defease, retire, acquire for value or pay acting upon the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration unanimous recommendation of the put rights Special Committee, has determined that the Offer is in the best interests of the holders Company and its shareholders and approved the Offer. Contemporaneously with the filing of the Holding Offer Documents, the Company 3.00% Convertible Notes shall file with the SEC a Solicitation/Recommendation Statement on May 15Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, 2010 and/or as amended and supplemented from time to time, the holders of “Schedule 14D-9”) and shall use its reasonable best efforts to disseminate the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder)Schedule 14D-9 with respect to the Offer, to the extent required by Rule 14D-9 promulgated under the Exchange Act and any other applicable Laws, to the holders of Shares concurrently with the mailing of the Offer Documents. Subject to Section 6.06(d) hereof, the Offer Documents and the Schedule 14D-9 shall contain a recommendation of the Company Board that holders of Shares accept the Offer and tender their Shares to Merger Sub pursuant to the Offer, and the Company hereby consents to the inclusion in the Offer Documents of such recommendation. The Schedule 14D-9 shall comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, mailed or otherwise furnished to holders of Shares, shall not contain any untrue statement of a material fact or omit 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 were made, not misleading, except that the Company makes no covenant, agreement, representation or warranty with respect to information supplied by Parent or Merger Sub in writing specifically for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Sub shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent necessary such that the Schedule 14D-9 does not contain any untrue statement of a material fact or omit 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 Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable U.S. federal securities Laws. (i) Parent and its counsel shall be afforded a reasonable opportunity to review and comment upon the Schedule 14D-9 before it is filed with the SEC and disseminated to holders of Shares. The Company shall provide Parent and its counsel copies of any written comments or telephonic notification of any oral comments or other communications the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments or other communications, shall consult with Parent and its counsel prior to responding to any such comments or other communications, and shall provide Parent with copies of all written responses and telephonic notification of any oral responses thereto of the Company and its counsel. Parent and its counsel shall be given a reasonable opportunity to review any such responses and the Company shall give reasonable and good faith consideration to any comments made by Parent and its counsel prior to the submission of any such responses. (j) In connection with the Offer, the Company shall instruct its transfer agent to promptly furnish Merger Sub with mailing labels containing the names and addresses of the record holders do not exercise of Shares as of a recent date and of those Persons becoming record holders subsequent to such put rights date, together with copies of all available lists of stockholders, security position listings and computer files and all other information in the Company’s possession or control regarding the beneficial owners of Shares, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Parent may reasonably request, in each case, for the purpose of communicating the Offer to the holders of Shares. (k) Except pursuant to the Offer or as otherwise permitted under Section 6.03, none of Parent, Merger Sub, the Sponsor, the Chairman or their Affiliates shall purchase any Shares from the date hereof until the earlier of (i) the Effective Time and (ii) termination of this Agreement pursuant to the terms thereofhereof. (l) Parent and Merger Sub hereby agree and acknowledge that if the Offer is commenced, within 120 days after any failure to consummate the expiration of such put rights, the Borrower Offer shall apply the portion of the balance held not result in the Initial Second Priority Debt Proceeds Collateral Account that it does not require Parent or Merger Sub having a right to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower terminate this Agreement except to the Administrative Agent certifying as extent that Parent otherwise has the right to terminate this Agreement pursuant to the use terms of such funds and that such use is permitted under this SectionSection 8.01 hereof.

Tender Offer. (a) The Borrower will use its best efforts Notwithstanding anything to consummate the Tender Offer with respect contrary contained herein, the parties hereto agree that the Escrow Agent shall, upon receipt of the written direction of the Paying Agent, direct the Transfer Agent to register all of the Holding Company Convertible Notes tendered thereunder no later One Year Escrow Shares and the Two Year Escrow Shares, other than November 5those One Year Escrow Shares reserved for in any One Year Reserve and those Two Year Escrow Shares reserved for in any Two Year Reserve (collectively, 2009 (or the "Escrowed Securities") in the name of the Paying Agent for the purpose of tendering such later date Escrowed Securities in response to which the a Permitted Tender Offer may be extended by (as hereinafter defined), provided that the Borrower Escrow Agent receives from the offeror (the "Offeror") under the Permitted Tender Offer either before or concurrently with the registration of the Escrowed Securities in good faith) (andthe name of the Paying Agent a certificate of an authorized signing officer of the Offeror to the effect that the terms and conditions of the Permitted Tender Offer have been met or satisfied and that the Offeror is irrevocably obligated to, upon and will, take up and pay for all securities deposited under the consummation thereofPermitted Tender Offer; provided however, for greater certainty, that if all the terms and conditions of the Permitted Tender Offer are not met or satisfied or all the securities duly deposited thereunder are not taken up and paid for, the Borrower Escrowed Securities shall promptly notify not be taken up or paid for and shall be re-registered in writing the Administrative Agent name of the completion of the Tender Offer Transactions). (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof Escrow Agent to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights pursuant held subject to the terms thereofand provisions of this Escrow Agreement. For purposes of this Escrow Agreement, within 120 days after a "Permitted Tender Offer" shall be deemed to have been made in circumstances where one or more persons or companies (the expiration "Offeror"), each being at arms's length to Manugistics Group, Inc. makes a bona fide tender offer or merger proposal to acquire all the shares of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Section.common

Tender Offer. (a) The Borrower will use No later than October 5 2007, to the extent the Buyer Specified Conditions are not effective and continuing prior to such date, Buyer shall commence a public tender offer for all of the issued and outstanding shares of Emel (the “Tender Offer”), and Buyer shall take any and all other action necessary to complete such Tender Offer in full compliance with Chilean Law, including announcing its best efforts Tender Offer in national publications in Chile in accordance with Chilean Law; provided that, Buyer agrees (i) to consummate hold its Tender Offer open only for the minimum period required under Chilean Law, (ii) not to extend the period of such Tender Offer, (iii) not to revoke or otherwise fail to complete the Tender Offer, (iv) not to condition the Tender Offer with respect to all (including by amendment thereto) in any manner other than (A) the expiration of the Holding Company Convertible Notes minimum Tender Offer period, (B) the tender of shares representing at least 95.4% of the issued and outstanding shares of Emel, and (C) the issuance by Emel of a certificate to the effect that the Emel Shares are free and clear of all Liens, (v) to specify in such Tender Offer to the greatest extent permitted by applicable Law that any shares tendered thereunder no later than November 5, 2009 (or such later date pursuant to which the Tender Offer may be extended withdrawn by the Borrower in good faithofferee prior to the completion of the period during which such Tender Offer is held open; and (vi) no later than three (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent of 3) days after the completion of the Tender Offer, to publish a notice of Buyer’s acceptance of the Tender Offer Transactions)process, together with an announcement with the results of the Tender Offer, in national publications in Chile in accordance with Chilean Law. The acquisition price offered for each Emel Share in the Tender Offer shall be equal to the Per Share Price, payable in cash on the Closing Date. (b) As Seller shall, and shall cause its affiliates to, provide Buyer with such information and other assistance as Buyer shall reasonably need in connection with the Tender Offer and compliance with Chilean Law related thereto. The prospectus and other offering materials prepared by Buyer to effect the Tender Offer shall be in a form and in substance reasonably acceptable to Buyer; provided, that Buyer shall give Seller such prospectus and offering materials and an opportunity to comment thereon at least one (1) Business Day prior to the filing of such prospectus and offering materials to effect the Tender Offer. (c) Seller shall cause the directors of Emel to, issue an opinion pursuant to Article 207, section (c) of the Fourth Restatement Effective DateChilean Securities Market Law (Law N°18.045). (d) Buyer shall keep Seller fully informed of all material developments relating to the Tender Offer, including the Borrower shall deposit commencement, progress and completion of such Tender Offer. (e) Subject to Buyer’s compliance with this Section 6.7 or to the Initial Second Priority Proceeds (less extent that the portion thereof Seller Specified Conditions are not effective and continuing as of such date, Seller is obliged to be usedtender, together sell and not to withdraw the Emel Shares and the Buyer is obliged to purchase the Emel Shares in accordance with the proceeds of the Tranche B Term Loans Tender Offer and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Accountapplicable Law; provided that, at any time after the Fourth Restatement Effective Date, so long as no Default Seller shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request immediately withdraw such tender of the Borrower to the Administrative Agent solely (but for no other purpose) (i) to purchase the Holding Company Convertible Notes pursuant to the consummation of Emel Shares as permitted by the Tender Offer and (ii) applicable Law if this Agreement is terminated for any Holding Company Convertible Notes remain outstanding after consummation of the Tender Offer, (A) to repurchase, redeem, defease, retire or acquire for value or pay the principal of any of the remaining Holding Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights reason pursuant to the terms thereof, within 120 days after the expiration of such put rights, the Borrower shall apply the portion of the balance held in the Initial Second Priority Debt Proceeds Collateral Account that it does not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held therein) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value any of the Other Debt and/or (y) to prepay the Tranche B Term Loans and (if any) the Incremental Loans in the order specified in Section 2.09(b)(iii); and (B) prior to any request for withdrawal of funds by the Borrower from the Initial Second Debt Priority Proceeds Collateral Account, the Borrower shall provide a certificate signed by a senior officer of the Borrower to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this SectionArticle IX.

Tender Offer. (a) The Borrower will use On the terms and subject to the conditions set forth in this Agreement and provided that the Company has complied with its best efforts to consummate obligations under Section 1.3 (other than any non-compliance that was immaterial), unless this Agreement shall have previously been validly terminated in accordance with Section 7.1, as promptly as practicable after the Tender date of this Agreement and in any event within the 10-business day period commencing on the first business day after the date of this Agreement, Acquisition Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer with respect to for all of the Holding outstanding Company Convertible Notes tendered thereunder no later than November 5, 2009 Shares (or such later date including any Company Shares subject to which the Tender Offer may be extended by the Borrower repurchase rights in good faith) (and, upon the consummation thereof, the Borrower shall promptly notify in writing the Administrative Agent favor of the completion Company), at a price per Company Share equal to the Per Share Amount. The date on which Acquisition Sub commences the Offer, within the meaning of Rule 14d-2 under the Tender Exchange Act, is referred to in this Agreement as the “Offer Transactions)Commencement Date”. (b) As of the Fourth Restatement Effective Date, the Borrower shall deposit the Initial Second Priority Proceeds (less the portion thereof to be used, together with the proceeds of the Tranche B Term Loans and the Tranche B-1 Term Loans, to make the payments provided for in Section 5.01(f)) directly into the Initial Second Priority Debt Proceeds Collateral Account; provided that, at any time soon as practicable after the Fourth Restatement Effective Date, so long as no Default shall have occurred and be continuing, the funds from the Initial Second Priority Debt Proceeds Collateral Account shall be available to be withdrawn at the request later of the Borrower to the Administrative Agent solely (but for no other purpose) (i) the earliest time as of which Acquisition Sub is permitted under the Exchange Act to accept for purchase the Holding Company Convertible Notes Shares validly tendered (and not withdrawn) pursuant to the consummation of the Tender Offer and (ii) if any Holding Company Convertible Notes remain outstanding after consummation the earliest time as of which each of the Tender OfferOffer Conditions shall have been satisfied or waived, Acquisition Sub shall (Aand Parent shall cause Acquisition Sub to) to repurchase, redeem, defease, retire or acquire accept for value or pay the principal of any of the remaining Holding payment all Company Convertible Notes or (B) to make payment of cash dividends or distributions to the Holding Company in an amount sufficient to enable the Holding Company to repurchase, redeem, defease, retire, acquire for value or pay the principal of any such Holding Company Convertible Notes (provided that such payments are applied directly to such repurchase, redemption, defeasance, retirement, acquisition for value or payment of principal); provided further that (A) following the expiration of the put rights of the holders of the Holding Company 3.00% Convertible Notes on May 15, 2010 and/or the holders of the Holding Company 4.875% Convertible Notes on January 15, 2011 (but excluding any other put rights thereunder), to the extent that any such holders do not exercise such put rights Shares tendered pursuant to the terms thereofOffer (and not validly withdrawn) (the time of such acceptance for payment, within 120 the “Acceptance Time”). The obligation of Acquisition Sub to accept for payment Company Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the conditions set forth in Annex I (the “Offer Conditions”) (and shall not be subject to any other conditions). As soon as practicable after the Acceptance Time (and in any event no later than two business days after the expiration of the Offer), Acquisition Sub shall pay for such put rightsCompany Shares (the time Acquisition Sub pays for such Company Shares, the Borrower “Offer Closing”). (c) Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Acquisition Sub shall apply (without the portion prior written consent of the balance held in Company): (i) change, amend or waive the Initial Second Priority Debt Proceeds Collateral Account Minimum Condition or the Termination Condition (provided that it does Parent and Acquisition Sub expressly reserve the right to (but shall not require to satisfy any such remaining put rights (or, upon expiration of all such put rights, the entire remaining balance held thereinbe obligated to) (x) so long as no Default shall have occurred and be continuing or would result therefrom, to purchase, repurchase, redeem, prepay or otherwise acquire for value waive any of the Other Debt and/or Offer Conditions (yother than the Minimum Condition and the Termination Condition) in their sole discretion); (ii) decrease the number of Company Shares sought to prepay the Tranche B Term Loans and (if any) the Incremental Loans be purchased by Acquisition Sub in the order specified Offer so that it is for fewer than all of the outstanding Company Shares; (iii) reduce the Per Share Amount to be paid pursuant to the Offer (provided that Parent and Acquisition Sub expressly reserve the right to (but shall not be obligated to) increase the Per Share Amount to be paid pursuant to the Offer in their sole discretion); (iv) extend or otherwise change the Expiration Time of the Offer (except pursuant to Section 2.09(b)(iii1.1(d)); (v) change the form of consideration payable in the Offer; (vi) impose any condition to the Offer (other than the Offer Conditions) or amend, modify or supplement any of the Offer Conditions or any of the other terms of the Offer in any manner adversely affecting, or that would reasonably be expected to have an adverse effect on, any of the holders of Company Shares (provided that Parent and Acquisition Sub expressly reserve the right to (but shall not be obligated to) waive any of the Offer Conditions (other than the Minimum Condition and the Termination Condition) in their sole discretion); (vii) provide any “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act; or (viii) take any action (or fail to take any action) that would result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL. (d) The Offer shall expire at 11:59 p.m., New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the Offer Commencement Date (the “Initial Expiration Time”), unless the Offer has been extended as provided in this Agreement (the Initial Expiration Time or such later expiration time to which the Offer has been so extended being referred to in this Agreement as the “Expiration Time”). Notwithstanding the foregoing, (i) if, at the then-scheduled Expiration Time, any Offer Condition is not satisfied and has not been waived, then (A) Acquisition Sub may extend the Offer and the Expiration Time beyond the Initial Expiration Time for one or more periods of up to 10 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) each to permit such Offer Condition to be satisfied and (B) to the extent requested by the Company from time to time, Acquisition Sub shall extend (and re-extend) the Offer and the Expiration Time beyond the then-scheduled Expiration Time for one or more periods of up to 10 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) each to permit such Offer Condition to be satisfied; provided that Acquisition Sub shall not be required to extend the Offer beyond the End Date, nor shall Acquisition Sub extend the Offer beyond the End Date without the Company’s prior written consent; and (ii) Acquisition Sub shall extend the Offer and the Expiration Time for the minimum period required by any applicable Legal Requirements. The Offer may not be terminated prior to the then-scheduled Expiration Time unless this Agreement is validly terminated in accordance with Section 7.1. If this Agreement is validly terminated in accordance with Section 7.1, then Acquisition Sub shall (and Parent shall cause Acquisition Sub to) immediately, irrevocably and unconditionally terminate the Offer, and Acquisition Sub shall not acquire or pay for any request for withdrawal Company Shares pursuant to the Offer. If the Offer is terminated or withdrawn by Acquisition Sub in accordance with the terms of funds by this Agreement, Acquisition Sub shall promptly return, and Parent and Acquisition Sub shall cause any depository acting on behalf of Acquisition Sub to return, all Company Shares tendered pursuant to the Borrower from Offer to the Initial Second Debt Priority Proceeds Collateral Accountregistered holders thereof. Nothing contained in this Section 1.1(d) shall affect any termination rights set forth in Section 7.1. (e) Subject to Section 5.1(b), if, between the date of this Agreement and the Acceptance Time, the Borrower outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Per Share Amount shall provide a certificate signed by a senior officer of the Borrower be adjusted to the Administrative Agent certifying as to the use of such funds and that such use is permitted under this Sectionextent appropriate.